A complete Texas estate plan is a set of coordinated documents, not a single will. Most families need a will or revocable trust, a statutory durable power of attorney, a medical power of attorney, a directive to physicians, a HIPAA authorization and a declaration of guardian in advance of need, together with beneficiary designations that match the plan. Each document has its own execution requirements under Texas law, and a document signed without them may fail when it is needed.
What families should know
Clients often come in asking for "a will." A will is essential, but it speaks only at death and governs only property that passes through probate. The rest of a plan addresses incapacity, which is statistically more likely than sudden death, and the assets that pass outside the will by beneficiary designation or title.
Each of the core documents does a different job. The will (or a revocable trust) disposes of property, names the executor and, for parents, names guardians and creates trusts for minor children. The statutory durable power of attorney authorizes an agent to manage finances and property during incapacity. The medical power of attorney names a health care agent. The directive to physicians states your wishes about life-sustaining treatment. The HIPAA authorization lets the people you choose obtain medical information. The declaration of guardian tells a court whom you want, and do not want, as guardian if one is ever needed.
Beneficiary designations on life insurance, annuities, retirement accounts and payable-on-death accounts often control more wealth than the will. They should be reviewed each time the plan is updated and should name contingent beneficiaries.
The legal detail
Execution requirements
| Document | Governing law | Execution requirements |
|---|---|---|
| Will | Tex. Est. Code ch. 251 | In writing, signed by the testator, and attested by two or more credible witnesses at least 14 years old who sign in the testator's presence (§ 251.051); a will wholly in the testator's handwriting need not be witnessed (§ 251.052) |
| Self-proving affidavit | §§ 251.101–.1045 | Testator and witnesses swear before a notary, allowing probate without witness testimony |
| Statutory durable power of attorney | Tex. Est. Code chs. 751–752 | Signed by the principal and acknowledged before a notary, with durability language (§ 751.0021) |
| Medical power of attorney | Tex. Health & Safety Code ch. 166, subch. D | Two qualified witnesses, at least one disinterested, or acknowledgment before a notary (§ 166.154) |
| Directive to physicians | Tex. Health & Safety Code ch. 166, subch. B | Two qualified witnesses, at least one disinterested, or acknowledgment before a notary (§ 166.032) |
| Declaration of guardian | Tex. Est. Code ch. 1104 | Written declaration designating or disqualifying guardians, witnessed or self-proved as the chapter requires |
Witness qualifications matter. For advance directives, at least one witness may not be the designated agent, a relative, an heir or beneficiary, the attending physician or certain health care facility employees, or a creditor of the estate (Tex. Health & Safety Code § 166.003). A medical power of attorney or directive witnessed only by family members is defective.
Why the power of attorney matters
Without a valid durable power of attorney, the usual route to managing an incapacitated adult's property is a court guardianship of the estate, with its applications, bonds, annual accountings and court supervision. A properly drafted statutory durable power of attorney avoids that, but certain powers, including making gifts, creating or changing beneficiary designations and survivorship rights, and creating or amending trusts, must be granted expressly (Tex. Est. Code § 751.031(b)).
The original signed will matters. Store it somewhere safe and tell your executor where it is. A copy isn't always enough to probate.
Documents to consider depending on circumstances
A transfer on death deed for a home or land (Chapter 114).
A community property survivorship agreement for married couples.
A declaration naming guardians for minor children, if not addressed in the will.
A supplemental needs trust for a beneficiary with a disability.
An appointment of agent to control disposition of remains.
An out-of-hospital do-not-resuscitate order, completed with your physician where appropriate.
Information your family will need
A list of bank, investment and retirement accounts, and insurance policies.
Real estate and mineral interests, with the county, legal description, operator and owner number.
Digital accounts and how to access them lawfully.
Contact information for your attorney, CPA and financial advisor.
The location of the original will and other signed originals.
Review the plan after a marriage, divorce, birth, death, move to or from Texas, significant change in assets, or every few years in any event.
Frequently asked questions
What is the most important estate planning document?
It depends on the stage of life. For parents of minor children, the will's guardian designation and children's trust. For older adults, the financial and medical powers of attorney are often as important as the will, because incapacity is more likely than sudden death.
Do single people need all of these documents?
Yes. Without powers of attorney, a court guardianship may be needed if you become incapacitated, and without a will, the intestacy statutes decide who inherits.
Where should original documents be kept?
Somewhere secure and accessible to your executor, such as a fireproof safe at home or with your attorney. Give copies of medical documents to your agent and physician. The original will matters: a copy can be probated only with additional proof (Tex. Est. Code § 256.156).
Can these documents be signed remotely?
Planning conversations can take place by phone or video. Execution requirements differ by document: a will requires two witnesses present with the testator, while a durable power of attorney requires acknowledgment before a notary.
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We help families across Texas, from San Antonio, Austin and Houston to Dallas–Fort Worth and West Texas, create wills, trusts and powers of attorney in plain English, with most meetings by phone or video. Your first consultation is free.
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Official sources
About the author
Todd Worrich is a San Antonio native and Texas attorney. He earned his undergraduate degree from Texas A&M University, his law degree from St. Mary’s University School of Law and an LL.M. in Taxation from SMU Dedman School of Law, and he has been recognized multiple times by Texas Super Lawyers. His practice focuses on estate planning, probate and helping Texas families recover oil and gas royalties. More about Todd
This article is general information about Texas law, not legal advice for your situation, and reading it does not create an attorney-client relationship. Laws change, and results depend on the facts of each matter. Attorney responsible for this content: Todd Worrich, San Antonio, Texas.
