Wills, Powers of Attorney and Directives in Texas — Questions and Answers

Pricing and what is included

How much does an online Will cost in Texas?

The Law Office of Walter Wm. Hofheinz prepares a simple Texas Will with protective trust provisions for a flat fee of $125. A Durable Power of Attorney for property is $20, a Medical Power of Attorney incorporating a HIPAA release is $20, and a Directive to Physicians is provided at no charge. All four documents together are $165. There are no hourly charges and no additional fees for the documents themselves.

What exactly do I get for $125?

The $125 fee covers a complete simple Will drafted for Texas law, including protective trust provisions and a self-proving affidavit, in a system designed and created by an attorney who is Board Certified, Estate Planning and Probate Law — Texas Board of Legal Specialization. It also includes thirty days to revise the document after preparation.

It does not include:

• A living trust, marital property agreement, or any tax-driven planning
• Deeds, beneficiary-designation changes, or retitling of accounts
• Court filing fees or probate costs
• An attorney present at your signing (available separately — see below)
• Ongoing review or updates after the thirty-day revision period

What is the total cost if I want all four documents?

$165 — the $125 Will, the $20 Property Power of Attorney, the $20 Medical Power of Attorney, and the Directive to Physicians at no charge.

How does this compare to other ways of getting a Will online in Texas?

The table below compares the three routes most Texans consider. Figures for other providers are taken from the sources named beneath the table and are current as of those sources' stated dates.

Why is this so much less expensive than a traditional engagement?

The fee is low because the process creates an individualized document designed to meet the needs of those with less assets and common needs. It is a subset of our full document system. It is not a form. You supply the information through a structured online interview. This system will build the documents to your specific needs based on the information you provide, rather than using in-office meetings, individual attorney document preparation, and document signings. This removes most of the time a simple Will actually consumes in a traditional engagement (for both you and the attorney).

For estates that need tax planning, a living trust, business succession, or provisions for a blended family, this office handles those as a conventional engagement. If you prepare online documents and you decide traditional services better meet your needs, we apply the amount paid for the online services to our fees.

What each document does

What is a Will and what happens in Texas if I do not have one?

A Will directs who receives your property when you die and who administers your estate; without one, Texas law decides both, and the result is frequently not what people expect. The rules are in Chapter 201 of the Texas Estates Code, and the community property provisions in particular surprise almost everyone.

If you are married and all of your children are also your surviving spouse's children, your half of the community estate passes entirely to your spouse — Tex. Est. Code § 201.003(b)(2).

But if you leave even one child who is not also your surviving spouse's child, your undivided one-half interest in the community estate passes to your children, not to your spouse — Tex. Est. Code § 201.003(c). Your surviving spouse keeps only her own half. In practice this means a surviving spouse can end up co-owning the family home with stepchildren.

Separate property splits differently again. Where there are children, the surviving spouse takes one-third of the separate personal property and a life estate in one-third of the separate real property, with the remainder passing to the children — Tex. Est. Code § 201.002(b).

What is a protective trust, and why is it in a simple Will?

A protective trust is a provision inside the Will that holds a beneficiary's inheritance in trust rather than handing it over outright, most commonly to protect a young beneficiary. Our protective trust also provides management for those adults who lack the capacity to manage their own affairs. This avoids the need for a guardianship of the estate resulting from one who lacks legal capacity receiving a gift under a Will. Our protective trust provides for management by someone you choose until your beneficiary reaches age 30, or recovers capacity. As I tell my clients, when things go right, it is a few extra sheets of paper wasted, but where things don't it can be invaluable. Most inexpensive Will forms do not include one, and most people who find a free form do not know to ask for it.

What is a Durable Power of Attorney?

A Durable Power of Attorney lets someone you name manage your property and financial affairs, and continues to operate if you later lose capacity, as set out in Chapter 751 of the Texas Estates Code. The Texas statutory form is set out in Tex. Est. Code § 752.051, and the governing law is the Durable Power of Attorney Act, Subtitle P of Title 2 of the Estates Code. The system provides a general Durable Power of Attorney that we use for our clients that is shorter while still giving your agent, the person you designate, full power to act, rather than the much longer statutory form. It is an excellent way to currently provide for a possible future need. (Where incapacity is known or expected, as with Alzheimer's or other dementia or injury, a trust is a better long-term management solution. While a Durable Power of Attorney is still appropriate, you should consult an estate planning lawyer about the best solution for your particular circumstances.) Without one, your family may have to go to court and obtain a guardianship to manage your affairs — a far slower and more expensive process.

What is a Medical Power of Attorney?

A Medical Power of Attorney names the person who will make health care decisions for you if you cannot make them yourself. The Texas form is at Tex. Health & Safety Code § 166.164, under the Advance Directives Act. Everyone should have a Medical Power of Attorney in order to see that their wishes regarding health care decisions are respected. The Medical Power we prepare adds to the prescribed statutory form a HIPAA authorization that allows all designees in the Medical Power of Attorney to receive medical information from health care providers even while not actively serving.

What is a Directive to Physicians?

A Directive to Physicians — often called a living Will — states your wishes about life-sustaining treatment if you have a terminal or irreversible condition. The Texas form is at Tex. Health & Safety Code § 166.033. Its benefits are a subset of the Medical Power of Attorney, since your designee under a Medical Power of Attorney can make any decision you could make, including withholding or withdrawing life support measures without the necessity of two doctors' agreement.

What documents do I need?

The three ancillary documents matter during your lifetime rather than after death. The Will governs what happens when you die; the Property Power of Attorney, Medical Power of Attorney, and Directive all govern what happens if you are alive but unable to act or decide for yourself. We strongly recommend you have a Power of Attorney for property and Medical Power of Attorney. When providing traditional services to clients, we typically do not prepare a Directive to Physician unless specifically requested in order to limit the emotional burden on a designee who might have to make end of life decisions.

Whether a Will prepared this way is valid

Is a Will prepared online valid in Texas?

Yes — a Will is valid in Texas based on how it is signed, not on how it was drafted, and nothing in Texas law requires a Will to be prepared in a lawyer's office. Tex. Est. Code § 251.051 requires that a Will be (1) in writing, (2) signed by the testator in person or by another at the testator's direction and in the testator's presence, and (3) “attested by two or more credible witnesses who are at least 14 years of age and who subscribe their names to the will in their own handwriting in the testator's presence.”

You must also be of sound mind and either 18 or older, married or formerly married, or a member of the armed forces or the Maritime Service — Tex. Est. Code § 251.001.

Can I sign my Will over video, or have my witnesses watch remotely?

No. Texas requires your witnesses to subscribe their names in your physical presence — § 251.051(3) — and Texas has not adopted the Uniform Electronic Wills Act or the Uniform Electronic Estate Planning Documents Act. A bill to adopt the latter, S.B. 1779 of the 88th Legislature (2023), was referred to Senate Jurisprudence in March 2023 and never reported out. Texas's electronic transactions statute expressly excludes Wills: Tex. Bus. & Com. Code § 322.003(b)(1) provides that the chapter does not apply to a transaction governed by “a law governing the creation and execution of wills, codicils, or testamentary trusts.”

The temporary emergency orders that relaxed these requirements during the 2020 pandemic have lapsed.

So: you and both witnesses must be in the same room. This is the single most common misunderstanding about online Wills, and getting it wrong is how a Will fails.

Can the other documents be signed remotely?

The ancillary documents are considerably more flexible than the Will, which is what most people get backwards.

• Durable Power of Attorney — requires acknowledgment before an officer authorized to take acknowledgments and administer oaths, and no witnesses at all: Tex. Est. Code § 751.0021(a)(4).
• Medical Power of Attorney — signed before two qualifying witnesses, or signed and acknowledged before a notary public in lieu of witnesses: Tex. Health & Safety Code § 166.154.
• Directive to Physicians — same structure; the declarant “may sign the directive and have the signature acknowledged before a notary public” in lieu of witnesses: § 166.032(b-1).
• Advance directives may also be signed with a conforming digital or electronic signature: § 166.011.

What is a self-proving affidavit and do I need one?

A self-proving affidavit is a sworn statement signed by you and your witnesses before an officer authorized to administer oaths, which allows the Will to be admitted to probate without your witnesses having to appear and testify years later. Texas defines a self-proved Will at Tex. Est. Code § 251.101 and sets out the affidavit's required form and content at § 251.104; a combined form permitting simultaneous execution, attestation and self-proving appears at § 251.1045. The documents produced use a traditional self-proving affidavit, not the combined form, since in our judgment it has advantages under some circumstances.

It is included at no additional charge, and you should use it. Locating a witness two decades after a signing is a genuine problem, and it is entirely avoidable.

A Will without a valid self-proving affidavit is still a valid Will — the affidavit affects proof at probate, not the Will's validity.

Can I write my Will by hand instead?

Yes. Texas does recognize a Will written wholly in the testator's own handwriting without witnesses, a “holographic Will” — the exception at Tex. Est. Code § 251.052 — but handwritten Wills are a common source of litigation, and this service does not produce them or provide sample text for them. While in traditional services we occasionally have clients prepare a holographic Will as a stopgap while formal documents are being prepared, holographs most frequently lead to litigation because the person writing it leaves out needed language or writes provisions ambiguously. In a case I handled, the person writing the holograph wrote “I give all of my estate to NAME as my independent executor.” The contestants contended this was not a gift, but simply a designation of executor, although the intent under the circumstances seemed clear to the proponent that a gift was intended as well as the designation of executor.

After your documents are prepared

Can I make changes after the documents are prepared?

You have thirty days after preparation to revise each document. The one thing that cannot be changed is the name of the person for whom a document was prepared — a Will prepared for one person cannot be converted into a Will for someone else.

What if I need to change my Will years from now?

A Texas Will may be revoked or changed only by a subsequent Will, a codicil, or a written declaration executed with the same formalities, or by the testator destroying or canceling it, or having it destroyed or canceled in the testator's presence — Tex. Est. Code § 253.002. Marking up your existing Will by hand does not work. If you need to prepare a replacement after the 30-day window, it is available for the same $125 fee, although if you discover a mistake after that period we can sometimes make arrangements for a lower fee on request.

Where should I keep the signed original?

You should keep the original in a safe place. A fireproof box at home or a safety deposit box are frequent choices that we recommend. Although it is possible to file the original with the County Clerk for the county where you live, in our experience it is much less likely that your executor will find it there, and if you revise your Will, it presents additional complexity. Where an original Will cannot be produced for probate it is presumed revoked by destruction. While it is possible to probate a lost Will by rebutting that presumption, there are proof requirements that make the process much more expensive and uncertain.

How long does it take?

The document is available immediately when you complete the information entry process. (But note, as stated above, it is not a Will until executed with the required formalities.) You simply print it, and can then arrange to execute it with required formalities. A checklist for execution of each document is provided with the document to assist in valid execution.

What if I want a lawyer present when I sign?

A $400 supervised signing is available. The attorney conducts the Will execution, confirms the formalities of § 251.051 are met, and arranges the witnesses and the self-proving affidavit. This is a separate service from the $400 planning consultation described above.

Whether this service fits your situation

Who is this service for?

This service is designed for Texas residents with straightforward circumstances: a first marriage or a single person, children who are all from that marriage, assets consisting mainly of a home, bank, personal property and home furnishings, and retirement accounts, and no estate tax exposure.

Who should not use it?

You should not use this service, and should call the office instead, if any of the following apply:

• You have children from a prior relationship, or your spouse does
• You own a business, a professional practice, or a management interest in a partnership or LLC
• You have a beneficiary with a disability who receives or may need public benefits
• You are in the middle of a divorce
• Your estate may be subject to federal estate tax
• You want a living trust, or you want to avoid probate
• Someone is likely to contest your Will
• You have questions about your capacity to sign, or are being pressured about your Will
• You own real property outside Texas*

* If you own real property outside of Texas, you should also consider consulting me or some other lawyer for advice on the most appropriate planning.

Does using this service make you my lawyer?

Yes, with the scope of representation strictly defined as preparing the appropriate documents requested based on the information you provide. Our representation begins with your payment for selected services and concludes with delivery of the documents to you for printing in the system. While documents remain available for review after the 30-day period, we do not assure they will do so for any determinate period. If you choose to hire us to supervise the execution of documents, it is a separate engagement.

About the attorney

Who prepares these documents?

Documents are prepared by a system designed and created by Walter Wm. Hofheinz, who is Board Certified, Estate Planning and Probate Law — Texas Board of Legal Specialization. He has been licensed in Texas since 1979 (State Bar No. 09791600), holds a J.D. from the University of Texas School of Law, and served as an Associate Professor at Texas Wesleyan University School of Law (now Texas A&M School of Law) from 1991 to 1997, where he taught wills, trusts and estates. He was named “Lawyer of the Year” by the General Practice, Solo & Small Firm Section of the State Bar of Texas in 2006.

Walter's practice has focused on estate planning and probate for over forty years, and he has been Board Certified since 1984. His traditional practice includes planning from small, simple estates to large, complex estates. He previously has included in his practice probate and fiduciary litigation, including Will contests and breach of fiduciary duty. He is AV Preeminent rated by Martindale-Hubbell. For additional information, see his full biography.

How do I know this is a real law firm?

wwh@hofheinzlaw.com

• State Bar of Texas profile: texasbar.com
• Texas Board of Legal Specialization listing: tbls.org/profile/9791600
• Full biography: hofheinzlaw.com/wwhvita.php

Getting started

How do I begin?

1. Create a client account. Provide the needed information. All information is treated as attorney-client communication.
2. Choose your services. Select the documents you need — Wills, Powers of Attorney, medical directives, and more.
3. Make payment. Pay securely by major credit card, ACH payments, and electronic checks.
4. Enter and verify information. Provide the details needed to produce your customized documents.
5. Review and print or download. Access your documents immediately.
6. Sign and execute as instructed, following provided checklists.

Start here

Questions first? Call 214.363.2400 or email wwh@hofheinzlaw.com or clientservices@hofheinzlaw.com.