Simple Will - Texas

LAST WILL AND TESTAMENT

OF [TESTATOR FULL LEGAL NAME]

RECITALS

I, [TESTATOR FULL LEGAL NAME], born [MM/DD/YYYY], presently residing at [Street Address, County, Texas], being of sound mind and disposing memory, hereby declare this document to be my Last Will and Testament (“Will”). I revoke all prior wills and codicils. This Will is executed in the State of Texas and is intended to be construed and enforced in accordance with Texas law.

TABLE OF CONTENTS

1. Definitions
2. Revocation of Prior Instruments
3. Family Information
4. Appointment of Independent Executor
5. Payment of Debts, Expenses, and Taxes

6. Disposition of Property
   6.1 Specific Bequests
   6.2 Residuary Estate
   6.3 Homestead Property

7. Guardianship of Minor Children

8. Fiduciary Powers
9. No-Contest (In Terrorem) Clause
10. Liability Limitation & Executor Indemnity
11. Governing Law; Forum Selection
12. Miscellaneous
13. Execution & Attestation
14. Self-Proving Affidavit

1. DEFINITIONS

For purposes of this Will, the following capitalized terms have the meanings set forth below:

“Child” or “Children” means each biological or legally adopted child of mine, living or en ventre sa mere on my Date of Death.

“Community Property” means all property characterized as community under Tex. Fam. Code and applicable case law.

“Date of Death” means the date on which I am legally determined to have died.

“Descendants” or “Issue” means lineal descendants of every degree, by blood or legal adoption.

“Executor” means the Personal Representative appointed under Section 4.

“Personal Effects” means clothing, jewelry, household goods, automobiles, recreational equipment, and similar tangible personal property.

2. REVOCATION OF PRIOR INSTRUMENTS

I hereby revoke all prior wills and codicils. Texas does not recognize a separate, unattested writing or memorandum disposing of tangible personal property (unlike the Uniform Probate Code's approach adopted in some other states); any memoranda, writings, or digital designations regarding disposition of property that are not executed with the formalities required under Tex. Est. Code Ann. § 251.051, or that do not qualify as a holographic will under Tex. Est. Code Ann. § 251.052, are intended to be precatory only and are not binding as a testamentary disposition.

3. FAMILY INFORMATION

I am married to [SPOUSE NAME] (“Spouse”).
I have the following children: [CHILD NAME(S) & D.O.B.].

4. APPOINTMENT OF INDEPENDENT EXECUTOR

4.1 Primary Executor. I nominate [PRIMARY EXECUTOR NAME] as Independent Executor. I direct that no bond or other security shall be required of the Independent Executor, pursuant to Tex. Est. Code Ann. § 401.005 (bond otherwise required of an independent executor unless waived by the probate court; a will's express direction that no bond be required is the customary basis for that waiver).

4.2 Successor Executor(s). If the Primary Executor is unable or unwilling to serve, then [SUCCESSOR EXECUTOR NAME] shall serve with the same authority, including the bond waiver in Section 4.1.

4.3 Independent Administration. Pursuant to Tex. Est. Code Ann. § 401.001, no other action shall be had in the probate court in relation to the settlement of my estate other than probating and recording this Will and returning any required inventory, appraisement, and list of claims (or an affidavit in lieu thereof), so that my estate is administered independently of court supervision to the fullest extent permitted by law.

4.4 Compensation. The Executor may receive reasonable compensation, or may waive compensation in writing.

5. PAYMENT OF DEBTS, EXPENSES, AND TAXES

5.1 Debts & Expenses. My just debts, funeral expenses, and costs of estate administration shall be paid first from the residuary estate.

5.2 Taxes. All estate, inheritance, generation-skipping transfer, and similar taxes attributable to my estate shall be paid from the residuary estate without apportionment, unless a specific devise is expressly made subject to tax.

6. DISPOSITION OF PROPERTY

6.1 Specific Bequests

I give the following property free of encumbrances (except as noted) to the beneficiaries identified below:

a. [Description of Asset] to [Beneficiary Name].
b. [Additional Itemized Bequests].

6.2 Residuary Estate

All the rest, residue, and remainder of my estate, real and personal, wherever situated (“Residuary Estate”), I give, devise, and bequeath to [PRIMARY RESIDUARY BENEFICIARY], per stirpes.

6.3 Homestead Property

Any devise of my residence homestead under Section 6.1 or 6.2 is made subject to, and may be limited by, the homestead protections of the Texas Constitution, which this Will cannot defeat. Under Tex. Const. art. XVI, § 52, my homestead descends and vests like other real property of mine, but it may not be partitioned among my heirs or devisees during the lifetime of my surviving spouse, so long as my surviving spouse elects to use or occupy the property as a homestead, or so long as a court permits the guardian of my minor children to use and occupy the property. Under Tex. Const. art. XVI, § 50, and Tex. Est. Code Ann. § 102.004, my homestead is also generally exempt from claims of estate creditors (other than purchase-money, tax, and certain improvement or home-equity liens) if I am survived by a spouse or a minor child. Accordingly, if I am survived by a spouse or a minor child at my death, any specific devise of "the residence" or other real property constituting my homestead takes effect subject to these constitutional and statutory homestead rights, notwithstanding any contrary disposition elsewhere in this Will.

7. GUARDIANSHIP OF MINOR CHILDREN

If at my Date of Death any Child of mine is a minor, I nominate [GUARDIAN NAME] as guardian of the person and estate of such minor child(ren), as authorized by Tex. Est. Code Ann. § 1104.053. If the nominee fails, is disqualified, or would not serve the minor children's best interests, [ALTERNATE GUARDIAN NAME] shall serve. I request that no bond be required of the guardian of the estate to the extent permitted by law.

8. FIDUCIARY POWERS

Because this Will creates an independent administration, the Executor shall have, without court order, all powers that a personal representative subject to court supervision may take with or without a court order, as provided by Tex. Est. Code Ann. § 402.002, in addition to any power of sale granted in this Will, and the following additional powers:

a. To sell, lease, exchange, or encumber estate property, real or personal, at public or private sale.
b. To retain, invest, reinvest, and diversify estate assets as the Executor deems prudent.
c. To make distributions in cash or in kind, pro rata or non-pro rata, without adjustment for unrealized gains or losses.
d. To settle or compromise claims for or against the estate.
e. To access, manage, control, and, in the Executor's discretion, obtain disclosure of the content of electronic communications, a catalogue of electronic communications, and other digital assets of mine, to the extent authorized by the Texas Revised Uniform Fiduciary Access to Digital Assets Act, Tex. Est. Code Ann. ch. 2001. This Will is intended to serve as my instructions in a "will" for purposes of Tex. Est. Code Ann. § 2001.051(b), giving the Executor priority to request such access from custodians (subject to any contrary direction I later give through a custodian's own online tool under § 2001.051(a)), and the Executor may apply for a court order under Tex. Est. Code Ann. § 402.003 directing disclosure where necessary.

9. NO-CONTEST (IN TERROREM) CLAUSE

If any beneficiary directly or indirectly contests this Will or any of its provisions, or institutes proceedings to impair or invalidate any part hereof, any share or interest in my estate given to that beneficiary shall be forfeited and shall pass as if that beneficiary had predeceased me.

Under Tex. Est. Code Ann. § 254.005, this forfeiture (no-contest / in terrorem) clause is enforceable unless, in a proceeding to determine whether it should be enforced, the beneficiary who brought the contested action establishes by a preponderance of the evidence that (a) just cause existed for bringing the action, and (b) the action was brought and maintained in good faith. Consistent with § 254.005(b) and Texas case law narrowly construing forfeiture clauses (see, e.g., Di Portanova v. Monroe, 402 S.W.3d 711 (Tex. App.—Houston [1st Dist.] 2012, no pet.); In re Estate of Hamill, 866 S.W.2d 339 (Tex. App.—Amarillo 1993, no writ)), this clause does not apply to, and does not cause forfeiture on account of, a beneficiary (i) seeking to compel the Executor to perform a fiduciary duty, (ii) seeking redress for the Executor's breach of a fiduciary duty, or (iii) seeking a judicial construction of this Will.

10. LIABILITY LIMITATION & EXECUTOR INDEMNITY

10.1 Limitation of Liability. The Executor shall be liable only for acts or omissions constituting gross negligence, willful misconduct, or bad faith. Estate assets shall be the sole source of satisfaction of any Executor liability.

10.2 Indemnification. The estate shall indemnify and hold the Executor harmless from all claims, losses, and expenses, including reasonable attorneys’ fees, arising from the good-faith administration of the estate.

11. GOVERNING LAW; FORUM SELECTION

This Will shall be governed by and construed in accordance with the laws of the State of Texas. Texas does not have a single, statewide "Probate Court"; original probate jurisdiction is determined county-by-county under Tex. Est. Code Ann. §§ 32.002 and 32.005: in a county that has a statutory probate court, that court has exclusive original jurisdiction of all probate proceedings; in a county with no statutory probate court but with a statutory county court at law exercising probate jurisdiction, that court and the constitutional county court have concurrent original jurisdiction; and in a county with neither, the constitutional county court has original jurisdiction, subject to the assignment of a statutory probate court judge or transfer of a contested matter to the district court under Tex. Est. Code Ann. § 32.003. Venue and jurisdiction for probate, construction, and enforcement of this Will shall accordingly lie in the court exercising original probate jurisdiction for [COUNTY, TEXAS].

12. MISCELLANEOUS

12.1 Simultaneous Death. If any devisee under this Will does not survive me by 120 hours, or if any devisee and I die under circumstances making the order of death uncertain, such devisee shall be deemed to have predeceased me for all purposes of this Will, consistent with Tex. Est. Code Ann. § 121.101.

12.2 Survivorship Period. A beneficiary must survive me by [30] days to take under this Will; this survivorship requirement is an express contrary provision that supersedes the 120-hour default period under Tex. Est. Code Ann. § 121.101(2).

12.3 Severability. If any provision of this Will is held invalid, the remaining provisions shall remain in full force to the extent possible.

12.4 Headings. Headings are for reference only and do not affect substantive meaning.

13. EXECUTION & ATTESTATION

Signed on this ___ day of __________, 20___, at _______________________, Texas.

__________________________________________
[TESTATOR FULL LEGAL NAME], Testator

ATTESTATION CLAUSE

(Required by Tex. Est. Code Ann. § 251.051)

We, the undersigned, hereby certify that on the date written above, [TESTATOR FULL LEGAL NAME], the Testator, declared this instrument to be his/her Last Will and Testament, signed it (or directed another to sign on his/her behalf) in our presence, and declared to us that it was his/her Will. The Testator appeared to be of sound mind and at least 18 years of age. We, being each at least 14 years of age, sign our names hereto in the Testator’s presence and in the presence of each other.

14. SELF-PROVING AFFIDAVIT

(Tex. Est. Code Ann. §§ 251.101 & 251.104)

State of Texas )
County of ______)

Before me, the undersigned authority, on this day personally appeared [TESTATOR FULL LEGAL NAME], [WITNESS #1 NAME], and [WITNESS #2 NAME], publicly known to me to be the Testator and the witnesses whose names are subscribed to the foregoing instrument, and, being duly sworn, each declared to me as follows:

1. The Testator, in the presence of the witnesses, declared the instrument to be his/her Last Will and Testament and signed (or directed another to sign) the Will.
2. Each witness, in the presence of the Testator and of each other, signed the Will as a witness.
3. To the best of the witnesses’ knowledge, the Testator was at least 18 years of age, of sound mind, and under no constraint or undue influence.

__________________________________
[TESTATOR FULL LEGAL NAME], Testator

__________________________________
[WITNESS #1 NAME], Witness

__________________________________
[WITNESS #2 NAME], Witness

Subscribed and sworn before me this ___ day of __________, 20___.

__________________________________
Notary Public, State of Texas
My Commission Expires: _____________