Dossey & Jones - Estate Planning Process

By: Jim Dossey, MS, MBA, JD

In Texas, a person cannot execute a Last Will and Testament or Trust without being of “sound mind”. Under various published Texas cases, having sound mind means that the testator of a Will or settlor of a trust had the mental ability at the time of the execution to understand:

  1. The kind and character of his/her property;

  2. The natural objects of his bounty (i.e. they need to know their family); and

  3. The effect of the act of making the Will or Trust.

At our law firm, we draft and execute hundreds of Wills and Trusts every year, so we cannot remember every execution ceremony that we conduct. That said, we follow the same process for each and every Will and Trust that we draft and execute to ensure that the estate planning documents follow the testator’s intent and that the testator had testamentary capacity.

As a first step in our estate planning process, we meet with the clients and have an initial estate planning discussion. We gather information about their family and obtain a high level balance sheet of their financial assets. Then, we discuss in detail who the clients want as executors, trustees, and powers of attorney. Once we are complete with gathering the estate planning information, we draft the documents and send them to the clients for review.

After the documents are drafted and the client has reviewed them, the clients will come back to our office to execute the documents. During every Will and Trust execution we perform, we first exhaustively review the documents to ensure that the clients fully understand the documents and agree that the documents accomplish their distribution goals. Then, two witnesses watch the testator, testatrix, or settlor sign the documents in their presence. The witnesses then sign the appropriate estate planning documents.

After the estate planning documents are signed, a notary questions the testator or settlor to ensure that the he or she has testamentary capacity. The witnesses and notary then each sign an affidavit attached to the Last Will and Testament that states that “the Testatrix declared to me and to the Witnesses in my presence that such instrument is her last will and testament, and that she had willingly made and executed it as her free act and deed; and the Witnesses, each on his or her oath stated to me, in the presence and hearing of the Testatrix, that the Testatrix had declared to them that such instrument is her last will and testament, and that she executed same as such and wanted each of them to sign it as a witness; and upon their oaths each Witness stated further that they did sign the same as witnesses in the presence of the Testatrix and at her request; that she was at that time 18 years of age or over (or being under such age, was or had been lawfully married, or was then a member of the armed forces of the United States or of an auxiliary thereof or of the Maritime Service) and was of sound mine; and that each of the Witnesses was then at least 14 years of age.”

By going through this process, we feel confident that we ensure that every Will and Trust 1) meets the formal requirements mandated by law, 2) that the client’s intent is captured in the documents, and 3) that the client had the required capacity to execute the documents.

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