You NEED a Will!!! 6 Common Estate Planning Myths in Texas
Author: Joel P. Schroeder; Head of Estate Planning and Asset Protection, Alecozay Law Firm, PLLC
Last Updated: September 2026
Death. No one wants to think about it, but it’s inevitable (right there alongside taxes). Therefore, you should have a plan in place to protect your friends and family. Estate planning (such as drafting a will) is something most people know they should do, but it is also an area fraught with misinformation.
You may have seen on social media or heard from others that you do not need a will if you are married, that a trust is always better than a will, and/or that you can simply type up a will at home and sign it. However, at least under Texas law, these common assumptions are usually wrong and can possibly harm your loved ones. The right estate plan depends on your family structure, your property, and your intentions for when you pass (or possibly become incapacitated).
In this article, we address six common misconceptions about wills, trusts, probate, and estate planning overall in Texas.
Misconception 1: “I don't need a will because I'm married.”
Being married does NOT mean that you don't need a will. In fact, failing to have a will could put your spouse through unnecessary stress during an already stressful, emotional time.
One of the most common estate-planning misconceptions is that if a married person dies without a will, everything automatically passes to the surviving spouse. That is not necessarily what happens under Texas law, such as in the case of blended families or inherently non-probate assets (e.g., POD or joint deposit accounts, policies, etc.). Furthermore, many people don’t realize that, even if everything does go to the surviving spouse, failing to have a will creates significant delays and costs due to the dreaded “intestate” process.
Texas's intestacy laws determine who inherits property when someone dies without a will. Those rules distinguish between community property and separate property and can produce different results depending on whether the decedent has children and other surviving relatives.
For example, consider a married person who has children from a previous relationship. That person's surviving spouse may not simply inherit everything the decedent owned. The result can depend upon how the property is characterized and the identity of the surviving heirs. Texas Estates Code Chapter 201 establishes these intestacy rules.
Meanwhile, a will allows someone to make those decisions intentionally, rather than leaving the distribution of property to the courts and Texas Legislature (and through a lengthy process).
Misconception 2: “A trust is always better than a will.”
Yes, trusts can be extremely useful under certain circumstances, but a trust is not automatically better than a will for Texas residents. Not only are trusts more costly to draft and maintain than a will, but they can also result in serious problems down the line!
If you want to form a trust simply to avoid probate, the truth is that Texas has a relatively streamlined probate system in most circumstances (so long as you have a proper will). For example, Texas law permits independent administration, which can substantially reduce the court's involvement in administering an estate. A properly drafted will often provides for independent administration. Furthermore, a will with proper clauses will catch probate-affected property not mentioned in the trust as well as cover non-property-related concerns after death (e.g., burial).
Meanwhile, with trusts, there are numerous hurdles to overcome. Trusts must be properly drafted and maintained (which usually costs more time and money and should exist IN ADDITION TO a will package), and failing to draft properly according to the true intentions of the settlor (the creator) can lead to loss of tax protections, conflict, and worst of all, invalid trusts! Moreover, regarding conflict, there can be numerous complications with trustee oversight and beneficiary conflicts compared to property distribution under a will.
To be clear, this doesn't mean that trusts aren't ever useful in addition to a will. They can be an excellent tool for particular estate-planning goals. Trusts may make sense when someone wants to:
Plan for potential incapacity;
Provide for minor children;
Manage assets for a beneficiary who may not be ready to receive them outright;
Address certain blended-family planning concerns;
Provide for a surviving spouse while preserving assets for children from a prior marriage;
Avoid ancillary probate involving real property located outside of Texas;
Maintain centralized management of assets; or
Address certain major estate tax-planning or asset-protection objectives;
The important question you and your attorney should ask isn't “Will or trust, which one is better?” It's: “What do you want the estate plan to accomplish, and, in addition to your will, does that truly necessitate a trust?”
Misconception 3: “My will controls everything I own when I die.”
A will is an important part of an estate plan, but it likely doesn't control every asset you own. Some property can and will pass outside of probate through beneficiary designations, contractual arrangements, survivorship rights, or other mechanisms.
For example, life insurance policies and retirement accounts commonly have beneficiary designations. If you name a beneficiary on one of those accounts, that designation with the institution holding the account often supersedes any will instructions regarding who receives the asset at your death. The same is true for bank accounts with a “payable upon death” designation, a useful tool to make accounts quickly available after death.
Texas law recognizes various nontestamentary transfers and contractual arrangements that can determine the disposition of property at death. Consider this hypothetical:
Brittany's will leaves her estate equally to her two children. However, Brittany has a $500,000 life insurance policy naming only one child as the beneficiary.
Simply having a will that says “everything to my children equally” does not necessarily mean that the life insurance proceeds will be divided equally; it is likely that the life insurance policy will go ONLY to the named child despite the language of the will. That's why a comprehensive estate plan should consider more than just the will.
Your estate plan may include:
Your will;
Powers of attorney (one or more types);
Declaration of guardianship;
Retirement-account beneficiary designations;
Life-insurance beneficiary designations;
Transfer-on-death arrangements; and
Other property-specific planning.
A will is important, but it is only one piece of the estate-planning puzzle.
Misconception 4: “I can just type up a will at home.”
This assumption is a dangerous one because Texas law does not simply treat any document labeled “Last Will and Testament” as a valid will. Under Texas Estates Code § 251.051, to have an “attested will,” a will generally must be:
In writing;
Signed by the testator (you) (or signed on the testator's behalf under the circumstances permitted by statute); AND
Attested by at least two credible witnesses who are at least 14 years old, with those witnesses subscribing their names to (i.e. signing) the will in the testator's presence.
So, a person can absolutely sit at home and prepare a will. However, simply typing a document on a computer, printing it, signing it alone, and putting it in a drawer may not satisfy Texas's requirements for a formal will. In fact, the document will likely be rejected, creating an intestate situation when you went to all that trouble planning.
But what about handwritten wills using good ol’ fashion pen and paper? This could possibly work, but there are strict rules.
Texas recognizes handwritten wills, also called holographic wills. Under Texas Estates Code § 251.052, a will that is written WHOLLY in the testator's handwriting, including signature, does not have to be attested (signed) by subscribing witnesses.
That means Texas law does recognize a form of will that a person can create without witnesses, but that exception does NOT mean that a person can simply type up a document at home and assume it is valid. To be clear, a typed, unwitnessed document is not the same as a holographic will.
Further, even when a handwritten will satisfies the statutory requirements, there can be practical problems with relying on a DIY document. Questions may arise about whether the document was actually intended to be the person's will, whether it was entirely handwritten, whether portions were added or changed, whether it accurately expresses the person's wishes, whether it includes standard provisions important to administration, and how the document should be “proved up” in probate.
This situation takes a lot more time and energy to get sorted out than simply entering an attested will (or even better, a “self-proving will” that an attorney can set up for you). In reality, a handwritten will is likely to create far more problems for your beneficiaries than it is worth.
The point is that estate planning is more complicated than typing a few sentences and signing your name. A properly prepared estate plan can address not only who receives property, but also:
Funeral and burial requests;
Who will serve as executor;
Whether independent administration should be authorized;
How property should pass to minor children;
What happens if a beneficiary passes before you;
How separate and community property are treated;
Whether trusts are appropriate;
How beneficiary designations should coordinate with the will;
Who can manage your finances if you become incapacitated; and
Other circumstances that a simple DIY document may not address.
In summary, the fact that Texas recognizes holographic wills does not mean that a typed DIY will is automatically valid, or that a DIY will is necessarily a good estate plan without extensive knowledge of wills and estates.
Misconception 5: “I don't need an estate plan until I'm old or wealthy.”
Estate planning isn't just about deciding who gets your money when you die or whether there’s enough of it to matter. It's also about answering who will make decisions for you if you can't make them yourself. Further, we unfortunately cannot assume that everyone will grow old before passing away.
A younger person may have relatively modest assets but still own a home, have retirement accounts, have life insurance, have children, or have other property that needs to be addressed. Those are core assets that must be addressed sooner rather than later in an estate plan.
Additionally, incapacity planning can be important regardless of age or wealth, especially if there is family history of certain conditions or if you have been diagnosed with a chronic condition. A comprehensive estate plan will include documents addressing financial and medical decision-making if a person becomes unable to act for themselves, such as directives, powers of attorney, and even declaration of guardianship (which can ensure someone you didn’t intend to be a guardian doesn’t override your power of attorney appointments).
For parents of minor children, estate planning can be particularly important because the plan can address who should care for children and how inherited property should be managed for them.
The takeaway is that you don't have to be wealthy or old to benefit from estate planning. The focus should be “What happens to the people I care about and property I'm responsible for if something happens to me?”.
Misconception 6: “I only need to do estate planning once, and it’ll cover me for the rest of my life.”
Estate planning isn't a one-time event. People get married. They divorce. They have children. Children become adults. Beneficiaries die. People buy and sell real estate. They start businesses. They inherit property. They move to another state. All this to say, life changes, and it does so frequently without much notice.
Further, you could change your mind about how things are handled, and beneficiary designations could change. That means a person can have a perfectly valid will and still have an outdated estate plan.
For example, someone might prepare a new will leaving everything equally to two children and a spouse, all by named designation, but forget to update the will after having a third child and a divorce. The will may be perfectly valid despite changes in circumstances. The problem is that the overall estate plan isn't coordinated.
Good times to review an estate plan include:
Marriage;
Divorce;
Birth or adoption of a child;
Death of a beneficiary or executor;
Significant inheritance;
Purchase or sale of real estate;
Starting or selling a business;
Moving to another state;
Significant changes in financial circumstances; and
Major changes in a beneficiary's circumstances.
Even without a major life event, periodically reviewing your estate plan every few years can help ensure that your documents still accomplish what you intend.
Conclusion
Estate planning is about more than documents; it’s about making sure your wishes are known, your loved ones are protected, and your property is handled the way you intend. Whether you need a simple will package, a review of your current estate plan, or are considering whether a trust is appropriate, taking the time to understand your options can provide valuable peace of mind.
At Alecozay Law Firm, PLLC, we can provide comprehensive estate planning services. Our attorneys can help you evaluate your circumstances, understand your options, and develop an estate plan designed to accomplish your goals. Contact us today if you would like will and estate planning services.
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