Estate Planning | gilkeslawfirm.com

The purpose of a Will is to list your items and declare where your assets should go when you pass away. In Texas, there are certain guidelines that must be followed for you to have a valid will.

A valid will is:

written by an individual (called the testator) that is at least 18 years old, or otherwise emancipated by marriage or military enlistment;
written by a testator who is of sound mind and can identify their assets, family members, and understands they are making a Will which will distribute all of their possessions upon death;
the Will must be in writing and signed by the testator. If the Will is not completely in the testator’s handwriting, it must also be signed by two witnesses who are at least 14 years old. The will should be signed by disinterested witnesses (individuals who are not inheriting from the Will) and should include a self-proving affidavit;
The testator must sign the Will in the presence of the witnesses, and must watch the witnesses sign the Will.

Texas no longer allows oral Wills. All wills must be in writing and properly executed.

It is best to keep the original Will in a safe place where it can be easily accessed when necessary. For your convenience, the Court Clerk allows you to deposit your Will with the Court for a nominal fee. Please keep in mind that it is very difficult to probate a copy of a Will in Texas. If you choose not to deposit your Will with the Court, you should have some other arrangement in place to ensure safekeeping of the Will.

Many people attempt to draft a Will on their own with disastrous results. It is best to have a qualified attorney draft your Will and ensure that it is properly executed.

It’s been over a year since Steve McNair was killed and his estate is still up in the air. Since he didn’t leave a will to manage his estate, his widow was left to move forward with the Probate Administration without much guidance as to how the estate should be distributed. McNair and his wife Mechelle had two young children, Tyler and Trenton. McNair also had two other children from two additional women – Steven L. McNair, Jr. and Steven O.K. McNair. Despite the fact that the older two children carried her husband’s name and knew him as their father, Mechelle initially left them out of court documents when identifying McNair’s heirs to the Court. Her reasoning was that she lacked sufficient information to confirm or deny whether Steve was their father or not. Rumor has it, there was strife among the families long before Steve McNair passed away.

This is an excellent example of 1) why everyone should have a Will; and 2) why it is important to establish paternity for your children.

If you have a properly executed Will, the Court will distribute your assets as you have requested as long as the items are available in your estate. Barring a lawsuit to contest the Will, beneficiaries cannot easily be overlooked when their share of the estate is outlined in the Will and accepted by the Court. In our current society where blended families are the norm, it is strongly recommended that you put your wishes in writing so no one can discredit your intent later. This prevents confusion over where your assets should go, and it would help to prevent your spouse or some other relative from disowning your children after you are gone.

In the case outlined above, Steve McNair named his two oldest kids after himself and reportedly took care of them throughout his lifetime, so one would think this would be enough to protect their rights as his heir. Well this is not necessarily the case. In some states, such as Texas, your rights as a father are not established or protected until you have formally taken the responsibility of being a father. There are three types of fathers in Texas:

1. Presumed Father
- You are married to the mother of the child when the child is born; OR
- You were married to the mother and the child is born within 300 days of the divorce; OR
- You married the mother of the child after the child was born AND voluntarily placed your name on the birth certificate, signed an acknowledgement of paternity, or promised to support the child as your own; OR
- You reside with the child during the first two year of his/her life and represent to others that you are the father.

2. Acknowledged Father
The mother must sign an Acknowledgment of Paternity with the man claiming to be the biological father of the child. This form must be signed under oath, in the presence of a certified official, and filed with the Bureau of Vital Statistics. A DNA test is not required to sign an Acknowledgment of Paternity. This document has the same effect as a Court determining that you are the father.

3. Adjudicated Father
A Judge determines that you are the father after reviewing evidence (usually a DNA test) or hearing testimony on the matter of paternity. A man may also submit a pleading to the Court stating that he is the father, or testify to that effect under Oath in open Court.

As you can see, your legal rights are not preserved by merely giving the child your name or even by signing the birth certificate. There are a few additional steps to be taken before you are considered a child’s father under the eyes of the law. Once you are legally determined to the be father of a child, your parental rights are then protected. This includes the right to visitation and/or custody, as well as the right to make decisions regarding the child’s upbringing. Establishing your rights as a father also attaches the duty to support the child which generally means paying child support and medical support if you are not the primary custodian. Legally establishing your paternity also gives your child the right to inherit from you after you have passed away. When your rights are properly established and accepted by the Court and/or Bureau of Vital Statistics, it is very difficult if not impossible for someone to invalidate that later.

The Texas Department of Vital Statistics keeps track of parentage records and has devoted a FAQ section to their website to answer general questions. If you would like to file a Petition to Adjudicate Parentage, feel free to call our office to discuss the circumstances of your case.