Living Wills vs. Last Wills: What Every Texan Should Know Before it is Too Late

Estate planning is essential. It is something that you should set up before it is too late. What goes into an estate plan? In Texas, people typically include things like a last will, a living will, and a wide range of other legal documents. At SimpleLawTX, we are committed to making estate planning easy and understandable. Below, our Houston estate planning attorney explains the key things that every Texan should know about last wills and living wills in Texas. 

Understanding Living Wills in Texas

A living will makes sure that you retain control over your own key medical decisions even if you become temporarily or permanently incapacitated. Also called an advance directive in Texas, a living will is essentially a legal document that explains your medical care preferences if you become incapacitated and cannot communicate your own decisions. It tells doctors and family members whether you want life-sustaining treatment (ventilators, feeding tubes, resuscitation, etc) continued, limited, or outright withheld. Texans often use this document to make sure their wishes are respected during serious illness or at the end of life. 

Under Texas law, the living will is governed by Chapter 166 of the Texas Health and Safety Code. It is called the Advance Directives Act. To be valid, the directive must be in writing, signed by a competent adult, and witnessed by two qualified people or notarized. The statute provides a specific form titled the “Directive to Physicians and Family or Surrogates.” That is the right form to use to set up a living will. An attorney can help. Notably, hospitals and health care providers are required to honor it once they receive a properly executed copy. 

Note: As a related strategy for incapacity planning, Texans can (and should) also appoint a medical power of attorney. You can designate a trusted agent to make medical decisions not covered in the living will. Both documents work together to ensure control over medical treatment remains with you, the patient, rather than the court or a hospital. 

An Overview of Last Wills in Texas

You also need a last will. A last will and testament is the foundation of your estate plan. It is the primary legal document that expresses your final wishes and directs what happens to your property after you pass away. Along with other things, a will allows you to name beneficiaries, appoint an executor, and designate guardians for minor children. Without a valid will, your estate is distributed according to Texas intestacy laws. Of course, those rules often differ from a person’s actual wishes. In other words, a person who does not have a will loses control over their own estate. Every Texan, regardless of the size of their estate, should have a properly drafted and executed will. Texas recognizes several forms of wills under the Texas Estates Code, including 

• Attested wills (Texas Estates Code § 251.051): An attested will must be signed by the testator and two credible witnesses in each other’s presence. 
• Holographic wills (Texas Estates Code § 251.052): A holographic will (handwritten entirely by the testator) does not require witnesses but must clearly express testamentary intent and be signed. 

An attested will is a better option. While handwritten (holographic) wills can be valid in Texas, the reality is that disputes are far more likely to arise with that option. It is better to have a professionally written will that has been signed by witnesses. Making a will in Texas requires that the testator (creator) must be at least 18 years old, of sound mind, and act without undue influence. 

Note: Once executed, the will can be filed for probate in the county where the decedent resided. If the document meets all formal requirements, the court will issue letters testamentary to the named executor. The executor then administers the estate according to the decedent’s written instructions.

An Estate Plan Should Be Comprehensive 

A comprehensive estate plan is the best estate plan. You should have a last will, a living will, and potentially other legal documents as well. You do not want to leave things to chance. A proactive approach to estate planning is the best approach. With the right strategy, you will be in the best possible position to get a successful outcome. A strong estate plan coordinates both types of wills as well as any other documents that you may have, such as powers of attorney or trusts. 

Texans should not view these documents (or any other estate planning documents)  as alternatives but as complementary tools. The living will protects your autonomy while you are alive but incapacitated; the last will protects your legacy after death. Together, they prevent court intervention, reduce family conflict, and keep decision-making within your control. An experienced Houston, TX estate planning lawyer can help you put the best plan in place for your situation. 

Why Trust SimpleLaxTX for Estate Planning in Texas

An estate plan should be comprehensive. The right approach to estate planning depends on a number of different factors, including your personal situation, your family structure, and your goals. For most people, a living will and a last will are a must. At SimpleLawTX, we provide solutions-focused estate planning services. Our team will invest the time, the resources, and the attention to the smallest of details to help you find the right solution. Your initial strategy session with our Houston, TX estate planning lawyer is completely confidential and carries no obligations. 

Contact Our Houston, TX, Will and Living Will Lawyer Today 

At SimpleLawTX, our Houston estate planning attorney has the skills and experience to help you with both a last will and a living will. If you have any specific questions or concerns about your estate plan, we are here to help. Contact us today for a completely confidential initial case review. With an office in Houston, we handle living wills and last wills across Southeast Texas.