LAST WILL AND TESTAMENT
OF [TESTATOR FULL LEGAL NAME]
[// GUIDANCE: This template is drafted pursuant to Texas law and is intended for use by licensed Texas attorneys. Replace all bracketed, ALL-CAPS placeholders before execution.]
TABLE OF CONTENTS
- Document Header & Recitals
- Definitions
- Revocation, Debts & Taxes
- Family Status Declaration
- Specific Bequests
- Residuary Estate & Testamentary Trust Creation
- Testamentary Trust Terms
7.1. Trust Estate & Funding
7.2. Beneficiaries
7.3. Distributions
7.4. Termination - Appointment of Fiduciaries
8.1. Executor
8.2. Trustee
8.3. Guardian of Minor Children - Fiduciary Administrative Powers
- Fiduciary Standards, Indemnity & Liability Cap
- Spendthrift & Creditor Protection
- Default, Removal & Successor Provisions
- Dispute Resolution & Forum Selection
- Miscellaneous / General Provisions
- Execution & Attestation
- Self-Proving Affidavit (Texas Estates Code § 251.104)
1. DOCUMENT HEADER & RECITALS
I, [TESTATOR FULL LEGAL NAME], a resident of [COUNTY] County, Texas, being of sound mind and over eighteen (18) years of age, hereby declare this to be my Last Will and Testament (this “Will”), and I revoke all prior wills and codicils. This Will is made under and shall be governed by the laws of the State of Texas.
2. DEFINITIONS
Unless the context clearly requires otherwise, the following terms have the meanings set forth below. Defined terms are used throughout this Will with initial capitalization.
“Applicable Law” means the Texas Estates Code, the Texas Trust Code (Tex. Prop. Code Ann. §§ 111.001 et seq.), and all other Texas statutes governing wills, trusts, fiduciaries, and probate proceedings, as amended.
“Beneficiary” means any person or entity presently or contingently entitled to receive principal or income from the Trust.
“Executor” means the personal representative appointed in Section 8.1.
“Heir(s)” means the individuals identified in Section 4.
“Independent Administration” means an administration free of court supervision pursuant to Tex. Est. Code § 401.001.
“Qualified Trustee” means an individual or corporate trustee who is not disqualified under Tex. Prop. Code Ann. § 112.034.
“Trust” means the testamentary trust created in Article 6 (the “[FAMILY] Trust”).
“Trust Estate” means all property, real or personal, tangible or intangible, that is transferred to the Trust, together with all substitutions, accretions, and proceeds thereof.
3. REVOCATION, DEBTS & TAXES
3.1 Revocation. I hereby revoke and annul all prior wills and codicils made by me.
3.2 Payment of Debts, Expenses, and Taxes. My Executor shall pay from my residuary estate (a) all enforceable debts and expenses of my last illness and funeral, (b) costs of administration, and (c) all estate, inheritance, and generation-skipping transfer taxes imposed by reason of my death, without apportionment, except as otherwise required by Applicable Law.
4. FAMILY STATUS DECLARATION
I am married to [SPOUSE NAME] (“Spouse”).
I have the following children: [CHILD 1 NAME], [CHILD 2 NAME], and [CHILD 3 NAME] (collectively, my “Children”).
[// GUIDANCE: Add any deceased children, adopted children, or disclaimer of additional heirs if appropriate.]
5. SPECIFIC BEQUESTS
5.1 Tangible Personal Property. I bequeath all items of tangible personal property in accordance with any written memorandum signed by me and dated prior to or contemporaneously with this Will.
5.2 Cash & Specific Gifts.
(a) $[AMOUNT] to [BENEFICIARY NAME/CHARITY].
(b) [Describe additional specific gifts].
If any specific gift lapses, such property shall pass to the Residuary Estate.
6. RESIDUARY ESTATE & TESTAMENTARY TRUST CREATION
6.1 Residuary Gift. I devise and bequeath the entire residue of my probate estate, real and personal, including lapsed legacies and failed devises, to the Trustee, IN TRUST, to be held, managed, and distributed as provided in Article 7.
6.2 Name of Trust. The trust created herein shall be known as the “[TESTATOR] Family Trust.”
7. TESTAMENTARY TRUST TERMS
7.1 Trust Estate & Funding
The Trust shall be funded with the Residuary Estate under Section 6.1 and any property received by the Trustee from any source willing or permitted to add property to the Trust.
7.2 Beneficiaries
(a) Primary Beneficiary: Spouse, if living.
(b) Secondary Beneficiaries: My Children, per stirpes.
7.3 Distributions
7.3.1 Income. The Trustee shall distribute net income at least annually as follows:
(i) All to Spouse during Spouse’s lifetime; if Spouse predeceases me, equally to my Children who survive me.
7.3.2 Principal. In addition to income distributions, the Trustee may distribute principal for a Beneficiary’s health, education, maintenance, and support (the “HEMS Standard”).
7.3.3 Mandatory Termination Distribution. Upon termination under Section 7.4, the Trust Estate shall be distributed outright, per stirpes, to the then-living Children; if none, to my then-living descendants, per stirpes.
7.4 Termination
The Trust shall terminate upon the earliest of:
(a) Spouse’s death and the youngest Child’s attaining age [30];
(b) Final distribution required by Applicable Law; or
(c) Twenty-one (21) years after the death of the last to die of my descendants living on the date of my death (Rule Against Perpetuities savings clause).
8. APPOINTMENT OF FIDUCIARIES
8.1 Executor
I appoint [PRIMARY EXECUTOR NAME] as Independent Executor of this Will. If [he/she] fails to qualify or ceases to serve, [SUCCESSOR EXECUTOR NAME] shall serve. The Executor shall serve without bond.
8.2 Trustee
I appoint [PRIMARY TRUSTEE NAME] as Trustee. If [he/she/it] fails to qualify or ceases to serve, [SUCCESSOR TRUSTEE NAME] shall serve. Corporate trustees may serve with compensation pursuant to their published fee schedule in effect at the time services are rendered.
8.3 Guardian of Minor Children
If my Spouse predeceases me or is unable to serve, I nominate [GUARDIAN NAME] as guardian of the person and estate of any minor Child.
9. FIDUCIARY ADMINISTRATIVE POWERS
The Executor and Trustee (each, a “Fiduciary”) shall have, without court order, all powers granted under Tex. Prop. Code Ann. § 113.051 et seq., including but not limited to:
(a) Buy, sell, lease, or exchange property;
(b) Invest and reinvest in assets authorized by the “prudent investor” standard;
(c) Employ professionals and delegate authority as permitted by Applicable Law;
(d) Make tax elections, file returns, and settle tax liabilities;
(e) Hold assets in nominee name;
(f) Divide or distribute in cash or in kind, with or without pro-rata allocation of tax basis.
[// GUIDANCE: Consider tailoring powers for unique asset classes (e.g., closely-held business interests, oil & gas, digital assets).]
10. FIDUCIARY STANDARDS, INDEMNITY & LIABILITY CAP
10.1 Standard of Care. Each Fiduciary shall perform its duties with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent person acting in a like capacity would use (Tex. Prop. Code Ann. § 117.004).
10.2 Exculpation. No Fiduciary shall be liable for any act or omission except those arising from the Fiduciary’s own gross negligence, bad faith, or willful misconduct.
10.3 Indemnification. To the maximum extent permitted by Applicable Law, all liabilities, costs, and expenses (including reasonable attorneys’ fees) incurred by a Fiduciary in good-faith performance of its duties shall be paid from and limited to the Trust Estate or, with respect to the Executor, from the probate estate (the “Liability Cap”).
11. SPENDTHRIFT & CREDITOR PROTECTION
Distributions to any Beneficiary are subject to a spendthrift restriction. No interest of any Beneficiary may be voluntarily or involuntarily assigned, anticipated, pledged, or reached by any creditor before actual receipt.
12. DEFAULT, REMOVAL & SUCCESSOR PROVISIONS
12.1 Removal for Cause. A court of competent jurisdiction may remove a Fiduciary for (a) breach of fiduciary duty, (b) incapacity, (c) failure to comply with a court order, or (d) other grounds under Tex. Est. Code § 404.003 or Tex. Prop. Code Ann. § 113.082.
12.2 Voluntary Resignation. A Fiduciary may resign by giving thirty (30) days’ written notice to the income Beneficiaries and any co-Fiduciary, and by delivering a final account.
12.3 Successor Fiduciaries. Each Successor Fiduciary shall have all the rights and powers of the original Fiduciary without requirement of court approval.
13. DISPUTE RESOLUTION & FORUM SELECTION
13.1 Governing Law. This Will and the Trust shall be governed exclusively by the laws of the State of Texas.
13.2 Exclusive Jurisdiction. All matters relating to the probate of this Will or the administration of the Trust shall be determined exclusively by a court of competent probate jurisdiction in [COUNTY] County, Texas (the “Forum Selection”).
13.3 Arbitration. Arbitration is expressly disclaimed and shall not apply to any dispute under this Will or the Trust.
13.4 Jury Waiver. To the extent a jury trial might otherwise be available in a probate dispute, each interested person waives the right to trial by jury.
13.5 Injunctive Relief. Any court of competent jurisdiction sitting in the selected forum may issue temporary, preliminary, or permanent injunctive relief to enforce the terms of this Will or the Trust.
14. MISCELLANEOUS / GENERAL PROVISIONS
14.1 Headings & Gender. Headings are for convenience only. Words of any gender include all genders; words in the singular include the plural and vice versa.
14.2 Severability. If any provision is held invalid, the remaining provisions shall remain in full force, and the invalid provision shall be reformed to best effectuate my intent.
14.3 No Bond. Unless expressly required herein, no Fiduciary shall be required to give bond or other security.
14.4 Digital Signatures. A photocopy, PDF, or other reliable reproduction of this Will may be used for administrative purposes; however, only the original wet-ink signed instrument is intended for probate.
14.5 Integrated Instrument. This Will constitutes my entire testamentary plan, and no extrinsic evidence may be used to vary its unambiguous terms.
15. EXECUTION & ATTESTATION
IN WITNESS WHEREOF, I sign my name this ___ day of _, 20_, at __, Texas, declaring and publishing this instrument as my Last Will and Testament.
[TESTATOR FULL LEGAL NAME], Testator
We, the undersigned witnesses, sign our names hereto in the presence of the Testator and of each other and declare that the Testator, who is personally known to us, signed and declared this instrument to be his/her Last Will and Testament, and that we sign as witnesses hereto at the Testator’s request on the date and at the place set forth above.
| Witness Signature | Witness Printed Name | Address |
|---|---|---|
16. SELF-PROVING AFFIDAVIT
(Texas Estates Code § 251.104)
STATE OF TEXAS )
COUNTY OF ______)
Before me, the undersigned authority, on this day personally appeared [TESTATOR NAME], [WITNESS 1 NAME], and [WITNESS 2 NAME], known to me to be the Testator and the witnesses, respectively, whose names are signed to the attached or foregoing instrument, and, all being duly sworn, the Testator declared to me and to the witnesses in my presence that the instrument is the Testator’s Last Will and Testament, that the Testator had willingly made and executed it as the Testator’s free act and deed, and that the Testator executed it in the presence of said witnesses. The witnesses declared to me in the Testator’s presence that they willingly signed this Will as witnesses, that each witness was at least fourteen (14) years of age when signing, and that, to the best of their knowledge, the Testator was eighteen (18) years of age or older, of sound mind, and under no constraint or undue influence.
[NOTARY PUBLIC SIGNATURE]
Notary Public, State of Texas
My Commission Expires: _____
[// GUIDANCE: Attach separate schedules or property lists as needed (e.g., tangible personal property memorandum, business interests, life insurance beneficiary designations). Ensure that the Will is executed with two credible witnesses (age 14+) in the Testator’s and each other’s presence, and consider the self-proving affidavit to streamline probate.]