Texas estate planning is about protecting your family, preserving your assets, and ensuring your wishes are honored — both during incapacity and after death.

If you don’t create your own estate plan, the State of Texas has one for you. Under the Texas Estates Code, your property will be distributed according to Texas intestacy laws. For many families, that default plan does not reflect their true wishes.

A properly drafted estate plan allows you to:

• Control who inherits your assets

• Avoid unnecessary court involvement

• Protect minor children, or disabled adults

• Reduce family conflict

• Prepare in case of incapacity

• Streamline probate in Texas

• Protect family businesses and vulnerable beneficiaries

This guide explains what every Texas resident needs to know.

The Two Core Questions of Texas Estate Planning

Every estate plan answers two essential questions:

1. What happens if I become incapacitated?

2. What happens when I die?

Let’s break both down under Texas law.

What Happens If You Become Incapacitated in Texas?

Without proper legal documents, your family may need to seek a court-supervised guardianship. That process can be expensive, public, and emotionally draining.

Guardianship in Texas Probate Court

Under Texas law, a guardianship proceeding determines whether someone lacks legal capacity to manage financial or personal affairs. For this to happen, there must be evidence of poor financial or personal care decision-making.  This means that there must be a period of time when the vulnerable person is at high risk for physical or emotional harm, financial exploitation, and other peril. A judge in probate court may appoint:

• A Guardian of the Person (medical and personal decisions)

• A Guardian of the Estate (financial decisions)

Guardians must file ongoing reports and accountings with the court, which are time consuming, burdensome, and expensive.

The good news is that guardianship is often avoidable with proper advance planning. Most families prefer less restrictive alternatives.

Advance Directives in Texas

Texas law allows adults (18+) to create legally binding medical directives.

1. Directive to Physicians (Living Will)

A Directive to Physicians states your wishes regarding life-sustaining treatment if you have a terminal or irreversible condition.

It ensures:

• Your preferences are honored

• Your family avoids guilt and conflict

• Physicians have clear instructions

2. Power of Attorney for Healthcare

A Power of Attorney for Healthcare appoints a trusted agent to make medical decisions while you cannot.

Your agent makes decisions based on:

• Your written Directive to Physicians

• Your expressed wishes

• Information from your medical providers

3. HIPAA Authorization

Without a HIPAA release, your loved ones, and even your Agent under a Power of Attorney for Healthcare may be denied access to critical medical information. A proper estate plan includes a General HIPAA Authorization which can be used in any healthcare setting.

4. Mental Health Directives

If you have a history of mental health treatment, specialized planning may be appropriate.

Durable Financial Power of Attorney in Texas

A Durable Financial Power of Attorney allows someone to manage your finances on your behalf.  The “durable” in the title allows your appointed Agent to act according to your wishes at any time, even if you become incapacitated.  Some Financial Powers of Attorney are “springing”.  This means they only “spring” into effect once you are incapacitated.  This results in a great burden for your Agent, who then must prove to any financial institution that you are incapacitated.

Key Texas considerations:

• It must comply with the Texas Estates Code.

• Banks may hesitate to honor outdated documents.

• It should be updated periodically.

• You should name successor agents.

Without this document, your family may need court intervention.

Texas Trust Planning

Trusts are powerful estate planning tools under Texas law. They can:

• Avoid probate

• Provide asset protection

• Protect beneficiaries

• Assist with incapacity planning

• Preserve privacy

• Assist in Medicaid planning

What Is a Trust?

A trust involves three parties:

• Grantor – Creates the trust

• Trustee – Manages the trust

• Beneficiary – Receives benefits

Revocable Living Trust in Texas

A Revocable Living Trust:

• Avoids probate in Texas

• Allows you to remain in control

• Becomes effective immediately, and remains in effect after you pass away

• Provides seamless management during incapacity

• Maintains privacy

Assets properly titled in the trust pass without probate court involvement.

Irrevocable Trust

An Irrevocable Trust:

• Removes assets from your taxable estate

• May protect assets from creditors

• Is commonly used in Medicaid planning

• Cannot be easily modified

Testamentary Trust

Created through your Will, a Testamentary Trust:

• Protects minor children

• Prevents irresponsible spending

• Provides long-term management of inherited assets

What Happens If You Die Without a Will in Texas?

If you die without a valid Will, your estate is distributed under Texas intestate succession laws.

A (very brief) Texas Intestate Succession Overview

If unmarried with children:

• Assets pass equally and directly to children or their descendants.

If unmarried with no children:

• Assets pass to parents or siblings depending on who survives.

If married with children:

• Some Assets pass to the spouse.

• Distribution depends on whether children are from that marriage or a prior relationship.

Texas intestacy laws can create unintended consequences, especially in blended families where offspring from the first marriage may be disinherited.

Last Will and Testament in Texas

A Will allows you to:

• Control asset distribution

• Name guardians for minor children

• Appoint an Independent Executor

• Reduce family disputes

Important facts:

• A Will has no authority until death.

• A Will does not avoid probate.

• Beneficiary-designated accounts pass outside the Will.

• Guardians for minor children must be nominated in writing.

Understanding Probate in Texas

Texas probate is generally simpler than many states — but it still requires legal representation.

An Executor must:

• File the Will in Probate Court

• Obtain Letters Testamentary

• Notify beneficiaries

• Notify creditors

• File an inventory

• Pay debts and expenses

• Distribute remaining assets

Texas allows Independent Administration, which reduces court supervision — but proper Will drafting is essential.

Out-of-state Wills often lack Texas-specific language required for Independent Administration.  Anyone with a will drafted outside of Texas should have it reviewed, and updated by an experienced Estate Planning Attorney, board certified in the State of Texas in Probate.

Duties of a Texas Independent Executor

An Independent Executor must:

• Act as a fiduciary

• Protect estate assets

• Communicate with beneficiaries

• Provide accountings upon request

• Avoid conflicts of interest

Executors can be removed for misconduct or breach of fiduciary duty.

Texas Business Owners: Estate Planning Is Critical

If you own a business in Texas, estate planning must address:

• Succession planning

• Retirement

• Disability

• Death

• Ownership transfer

• Family vs. non-family management

Without planning, your business could be forced into liquidation.

Buy-Sell Agreements (BSA) in Texas

A Buy-Sell Agreement is a binding contract governing ownership transfer upon:

• Death

• Disability

• Retirement

Common formats:

• Entity Buy-Sell

• Cross-Purchase Buy-Sell

• Wait-and-See Buy-Sell

• One-Way Buy-Sell

Proper funding (often via life and disability insurance) is essential.  These issues can be complex, so consult with an experienced estate planning attorney.

Estate Taxes and Liquidity Planning

Texas does not have a state estate tax.

However:

• Federal estate tax laws change frequently.

• Liquidity planning is critical.

• Poor planning may force sale of business assets.

Life insurance is often used to create estate liquidity.

Coordinating Financial & Estate Planning

An estate plan must align with:

• Retirement accounts

• Beneficiary designations

• Business agreements

• Insurance coverage

• Real estate titling

Failure to coordinate can undermine your entire plan.  If you’re not sure if your plan is coordinated properly, contact our office today to book a call and a free consultation.

Frequently Asked Questions About Texas Estate Planning

Do I need a lawyer to probate a will in Texas?

Yes. Texas law requires an attorney to represent an Executor in probate court.

Can I avoid probate in Texas?

Yes. Revocable Living Trusts, beneficiary designations, and proper asset titling can avoid probate.

Is probate expensive in Texas?

Texas probate is less expensive than many states, especially under Independent Administration, but it still involves court costs and attorney’s fees.

What happens if I move to Texas with an out-of-state Will?

Your Will may not include Texas-specific Independent Administration language. It should be reviewed and likely updated.

Do I need both a Will and a Trust?

Many Texans benefit from having both. It depends on your assets, family structure, and goals.  Book a call and a free consultation to determine the right plan for you.

Why Work with a Board-Certified Texas Estate Planning Attorney?

Estate planning mistakes can:

• Trigger unnecessary probate

• Cause family conflict

• Create tax problems

• Result in guardianship

• Lead to litigation

Not all attorneys focus on probate and estate planning. Look for certification through the Texas Board of Legal Specialization.

Schedule Your Free Texas Estate Planning Consultation

Estate planning is not a DIY project. Generic forms and handwritten wills often fail under Texas law.

We help Texas families:

• Protect their children

• Preserve generational wealth

• Avoid probate when possible

• Plan for incapacity

• Secure business succession

Book a call today to discuss your needs, and schedule your free one-hour consultation.
You will receive a clear, flat-fee quote before work begins — no surprises.

Book your consultation with John McNair and protect your family’s future.