Estate Planning Checklist
This checklist walks through the documents most Texas estate plans need: a will that satisfies Texas's execution rules, a set of incapacity documents for financial and medical decisions, beneficiary designations, and a plan for where everything is kept. Texas has its own rules for several of these steps — some more forgiving than what you'd find in other states, some less — and skipping one can leave a gap that surfaces at the worst possible time.
If you don't have an estate plan yet, or it has been a few years since you reviewed the one you have, use this list to structure that conversation with your attorney. It isn't a substitute for advice specific to your family and your assets, but it tells you what to ask about.
Drafting a Will
Texas allows both a formally witnessed will and, in narrow circumstances, a handwritten will with no witnesses at all — but the rules for each are different, and mixing them up is one of the more common ways a will gets thrown out.
A formally executed will must be in writing, signed by the testator (or by someone else acting in the testator's presence and at the testator's direction), and attested by two or more credible witnesses who are at least 14 years old and sign in the testator's presence. Texas Estates Code Section 251.051 sets out these requirements. Anyone 18 or older, married, or serving in the U.S. armed forces has the legal capacity to make a will under Section 251.001.
Texas also recognizes holographic wills — a will written entirely in the testator's own handwriting — without any witnesses, under Section 251.052. That can matter in an emergency, but a handwritten will is also easier to contest and easier to get wrong, so it shouldn't be your primary plan if you have time to do a formal will instead.
Ask your attorney about a self-proving affidavit either way. Under Sections 251.101 through 251.104, a self-proved will can go through probate without tracking down your original witnesses to testify — which matters if a witness has since moved, died, or simply can't be located years later.
Some questions you should keep in mind:
- Who are the beneficiaries of your estate?
- How much (or what) will each beneficiary inherit?
- Who will be in charge of managing the distribution of your estate?
If you die without a will, Texas's intestacy statute decides these questions for you, and it treats community property and separate property differently. Under Estates Code Chapter 201, what your spouse receives from the community estate and what passes to children or other relatives both follow default rules you didn't choose. A will is how you replace that default with your own decisions.
Incapacity Planning
A will only controls what happens after you die. A separate set of documents controls what happens if you're alive but unable to make decisions — and in Texas, several of these are distinct documents with their own signing requirements, not one combined form.
A Statutory Durable Power of Attorney names an agent to handle financial and property matters if you become incapacitated. Under the Durable Power of Attorney Act, Estates Code Chapter 751, the instrument must be signed, must include language stating it survives your disability or incapacity, and must be acknowledged before a notary or other officer authorized to take acknowledgments. Chapter 752 provides a statutory form your attorney can use as a starting point; it isn't the only form that qualifies, but it's the one Texas courts and institutions recognize by name.
A Medical Power of Attorney is a separate document naming an agent for health care decisions. Texas requires it to be signed in the presence of two qualifying witnesses under Health and Safety Code Section 166.154, with the statutory form set out at Section 166.164. Financial and medical authority are governed by different chapters, so one power of attorney doesn't cover both — most complete Texas estate plans include both documents.
A Directive to Physicians — often called a living will — states your wishes about life-sustaining treatment if you're diagnosed with a terminal or irreversible condition and can't communicate. It's governed by Health and Safety Code Sections 166.032 and 166.033, separately from your Medical Power of Attorney.
An out-of-hospital DNR order, executed under Health and Safety Code Section 166.082, is a distinct form from a do-not-resuscitate order used inside a hospital. If you want paramedics to withhold resuscitation outside a medical facility, this is the specific document that accomplishes it; a hospital DNR alone doesn't reach that setting.
You'll also want a HIPAA authorization so the people you've named as agents can actually reach your medical records and talk to your doctors. Without it, federal privacy law can block them even after they're holding a valid power of attorney.
Finally, talk to your attorney about naming a preferred guardian in advance. Texas guardianship cases go through probate court under Estates Code Chapter 1101, and Health and Safety Code Section 166.156 gives that same court a role when a guardian's authority intersects with a Medical Power of Attorney. A documented preference gives the court a clear record of who you trust, instead of leaving that decision to be litigated among family members after the fact.
Beneficiary Designations
Life insurance, retirement accounts, and payable-on-death bank accounts pass to whoever is named on the beneficiary form, regardless of what your will says. Once your will and incapacity documents are in place, go back through these designations and confirm they still match your intentions.
You should check your:
- Life insurance policies
- Retirement accounts
- Bank and other financial accounts
Texas is a community property state, and that affects this step more than most people expect. Under Estates Code Section 201.003, community property follows its own distribution rules, separate from separate property, and a retirement account funded during a marriage is often community property even when only one spouse's name is on the account. Naming someone other than a spouse as beneficiary on a community-property asset — or on an ERISA-governed retirement plan without spousal consent — can create exactly the dispute your estate plan was supposed to prevent.
Consider Life Insurance
Depending on your circumstances, life insurance can be a useful estate-planning tool. It can fund a gift to a beneficiary who wouldn't otherwise inherit much, or make sure cash is available to your estate to cover final expenses before other assets are settled.
Giving to Charity
Your attorney can walk you through the vehicles available for a charitable gift — an outright gift, a gift in trust, or a gift through a private foundation — and the timing question that goes with each: whether to give during your lifetime or direct the gift to happen after you pass away.
Consider a Revocable Living Trust
Texas trusts are governed by the Texas Trust Code. Under Property Code Section 112.001, a trust can be created by a written declaration, a transfer of property to a trustee, or a transfer that takes effect at death. A revocable living trust can be changed or revoked at any time under Section 112.051 — which is what makes it a planning tool rather than a permanent commitment.
A properly funded revocable trust avoids probate for the assets it holds and keeps the details of your estate out of the public probate record. It can be especially useful if you own real estate in more than one state, since separate probate proceedings in each state is one of the more expensive mistakes a multi-state property owner can make. Whether a trust makes sense for you is a conversation for your attorney — it isn't a one-size-fits-all document.
Discuss Lifetime Gifts With Your Attorney
If you're thinking about making gifts during your lifetime, raise it with your attorney before you act. There's more than one way to make a gift — direct cash, an asset placed in trust, or payments made for someone's education or medical expenses can all carry different tax and planning consequences.
Business Succession Planning
If you own or co-own a family or closely-held business, business succession has to be part of the same conversation as your personal estate plan. That includes a plan to retain key employees, a path for bringing family members into the business on your timeline, and a structure — sometimes a holding company, sometimes a direct transfer under your will or trust — for keeping the business running after you're no longer the one running it.
Your Final Arrangements
Talk with both your attorney and your family about your final arrangements. If you have specific wishes for burial, cremation, or what happens to your remains, your attorney can prepare a document that states those wishes clearly and names who has the authority to carry them out.
Storage of Your Estate Planning Documents
Keep your estate planning documents somewhere safe and findable — a fireproof, waterproof safe at home or a safe deposit box are the usual options. Whichever you choose, make sure your agents and executor actually know where to look; a well-drafted will or power of attorney does no good if no one can find it when it's needed. Ask your attorney whether they offer document retention as part of their engagement.
Final Thoughts
Putting a Texas estate plan in place is not a single event — it's a small number of documents, each with its own execution rules, that work together. This checklist covers the major pieces, but it isn't exhaustive, and it isn't a substitute for sitting down with an attorney who can look at your specific assets, your family, and your goals. Review the plan again after any major life change — marriage, divorce, a new child, a move, or a significant change in what you own — since a plan that fit five years ago may not fit today.