Estate Planning Basics

A comprehensive Texas estate plan consists of four core documents: (1) a will, which directs the disposition of a person's probate assets at death; (2) a statutory durable power of attorney (DPOA), which authorizes a designated agent to manage a person's financial and property affairs during life; (3) a medical power of attorney (MPOA), which designates an agent to make health care decisions if the principal becomes incapacitated; and (4) a directive to physicians (commonly called a living will), which expresses the individual's specific preferences regarding life-sustaining treatment in a terminal or irreversible condition. Each document serves a distinct function and is governed by separate Texas statutes. A complete estate plan addresses both the transfer of assets at death and the management of a person's affairs — financial and medical — during any period of incapacity.

Why Estate Planning Matters in Texas

Texas is a community property state, meaning that property acquired by either spouse during marriage is generally owned jointly by both spouses. Without deliberate planning, the Texas intestacy statutes — not the individual — determine how property is distributed at death. Under Texas Estates Code §201.001, if a person dies without a will and without a surviving spouse, the estate passes to children and their descendants, then to parents, then to siblings, and so on in order of kinship.

When a surviving spouse is present, the outcome is more complex: under §201.003, the deceased spouse's share of community property passes to the surviving spouse only if all the decedent's surviving children are also children of the surviving spouse. If the decedent had children from a prior relationship, those children take the deceased spouse's share of the community estate, which can produce results sharply at odds with what most couples intend. For separate property, §201.002 grants the surviving spouse only a one-third interest in personal property and a life estate in one-third of the real property, with the remainder going to children.

The intestacy statutes make no allowance for friends, charities, step-children who were not adopted, or any other person outside the statutory hierarchy. A validly executed will is therefore the foundational document that prevents the state from writing a person's estate plan for them.

Wills

Who May Execute a Will

Under Texas Estates Code §251.001, a person of sound mind may execute a will if, at the time of execution, the person (1) is 18 years of age or older, (2) is or has been married, or (3) is a member of the armed forces of the United States, an auxiliary of those forces, or the United States Maritime Service. Texas courts have consistently held that the right of testamentary disposition is broad: "the right of testamentary disposition conferred by statute is as absolute as the right to convey property during life," and neither courts nor juries may rewrite a will simply because they disagree with the testator's chosen distribution.

Types of Wills: Attested and Holographic

Texas law recognizes two primary types of wills. The first, the attested will, is the formal, witnessed will. Under §251.051, an attested will must be (1) written, (2) signed by the testator (or by another person in the testator's presence and at the testator's direction), and (3) attested by two or more credible witnesses who are at least 14 years of age and who subscribe their names to the will in their own handwriting in the testator's presence.

The second type is the holographic will, which under §251.052 is entirely written in the testator's own handwriting and requires no subscribing witnesses to be valid. While a holographic will is simpler to create, it carries significant practical risks: because it is not witnessed, it requires proof of the testator's handwriting at probate, typically by two witnesses, which can create complications if the testator's handwriting is disputed or witnesses are unavailable.

Self-Proving Wills

A significant practical advantage available to both attested and holographic will makers is the option to make the will self-proving, which eliminates the need for witness testimony at probate. For an attested will, this is accomplished by attaching a notarized affidavit in the form specified in §251.104, sworn before a notary by the testator and both witnesses, confirming the due execution of the will. A self-proved will "is not required to have any additional proof that the will was executed with the formalities and solemnities and under the circumstances required to make the will valid."

A holographic will may also be made self-proving by the testator attaching an affidavit stating that: (1) the instrument is the testator's will; (2) the testator was 18 years of age or older at execution; (3) the testator was of sound mind; and (4) the testator has not revoked the will. The self-proving affidavit is strongly recommended for attested wills to facilitate the probate process.

Probate Deadline

A will must be offered for probate within four years of the testator's death. Under §256.003(a), a will may not be admitted to probate after the fourth anniversary of the testator's death unless it is shown that the applicant was not in default in failing to present the will timely. Missing this deadline can result in the will being treated as if it does not exist, forcing the estate into intestate succession.

Revocation and Amendment

A will may be revoked or amended at any time before death by a person of testamentary capacity. Under §253.002, a will or any clause or devise in a will may be revoked only by (1) a subsequent will, codicil, or declaration in writing executed with the same formalities as a will, or (2) the testator destroying or canceling the will, or directing its destruction or cancellation in the testator's presence. Oral statements cannot revoke a will. The proper way to make partial changes is through a codicil, which is a separate written amendment executed with the same formalities as the original will. For significant changes, it is generally preferable to execute an entirely new will that expressly revokes all prior wills.

Durable Power of Attorney (Financial)

Overview and Purpose

A statutory durable power of attorney (DPOA) is the primary financial planning document for incapacity. It authorizes a designated agent to manage the principal's property and financial matters without the need for expensive and time-consuming court-supervised guardianship proceedings. Critically, a DPOA does not authorize anyone to make medical or health care decisions for the principal — that authority is separately granted through the medical power of attorney.

Execution Requirements

To be valid, a Texas DPOA must satisfy the requirements of §751.0021: it must be (1) a writing or other record designating an agent and granting authority, (2) signed by the principal, (3) acknowledged before a notary public or other authorized official, and (4) contain specific language indicating the instrument's durability — language stating it is not affected by the principal's subsequent disability or incapacity. Additionally, the principal must have the mental capacity to understand the nature and consequences of granting the power.

Statutory Form and Scope of Authority

Texas provides a statutory durable power of attorney form in §752.051. The statutory form is strongly recommended for estate planning purposes. It allows the principal to select from 15 enumerated categories of authority by initialing each desired power, including: real property transactions; tangible personal property transactions; stock and bond transactions; banking and other financial institution transactions; business operating transactions; insurance and annuity transactions; estate, trust, and other beneficiary transactions; claims and litigation; personal and family maintenance; benefits from governmental programs; retirement plan transactions; tax matters; and digital assets.

Certain actions — such as making gifts, creating or changing rights of survivorship, and designating beneficiaries — require express grants of authority and are not included by default.

Durable vs. Springing

A DPOA that is effective immediately upon signing is the most commonly used form in estate planning, because it avoids the delay associated with a physician's certification of incapacity. A springing power of attorney, by contrast, only becomes effective upon the occurrence of a specified event (typically incapacity) but can create practical problems: a physician must formally certify the principal's incapacity before the agent can act, potentially delaying the agent's ability to manage urgent financial matters.

Agent's Fiduciary Duties

When an agent accepts authority under a DPOA, the agent assumes a fiduciary relationship with the principal. The agent's fiduciary duties include: (1) acting in good faith; (2) doing nothing beyond the authority granted; (3) acting loyally for the principal's benefit; (4) avoiding conflicts of interest; and (5) disclosing the agent's identity as agent when acting on the principal's behalf. The agent must also maintain records of all actions and decisions taken on the principal's behalf and provide an accounting if requested.

Termination

A DPOA terminates upon: (1) the principal's death; (2) revocation by the principal; (3) when the power of attorney provides that it terminates; (4) when the purpose of the power of attorney is accomplished; (5) when certain circumstances arise with respect to an agent and no successor agent is named; or (6) the appointment of a permanent guardian of the principal's estate. Importantly, the execution of a subsequent DPOA does not automatically revoke a previously executed DPOA — the subsequent instrument must expressly state that prior powers of attorney are revoked.

Medical Power of Attorney

Overview and Purpose

A medical power of attorney (MPOA) is an advance directive that allows a principal to designate a trusted agent to make all health care decisions if the principal becomes unable to do so. It is separate from and broader than a directive to physicians: it empowers the agent to make all health care decisions — not just end-of-life decisions — and is not limited to terminal or irreversible conditions. Every adult age 18 and older should have an MPOA; parents should understand that upon a child's 18th birthday, they no longer have automatic legal authority to make health care decisions for that child.

Execution Requirements

Under §166.154, the MPOA must be signed by the principal in the presence of two witnesses who qualify under §166.003, at least one of whom must be a witness who qualifies under the more restrictive requirements of §166.003(2). As an alternative, the principal may sign the MPOA and have the signature acknowledged before a notary public. If the principal is physically unable to sign, another person may sign the principal's name in the principal's presence at the principal's express direction.

The following persons may not act as witnesses: (1) the person designated as agent; (2) a person related to the principal by blood or marriage; (3) a person entitled to any part of the principal's estate; (4) the attending physician or employee of the attending physician; (5) an employee of a health care facility in which the principal is being cared for who is involved in providing direct patient care; and (6) an officer, director, partner, or business office employee of a health care facility in which the principal is being cared for.

When Authority Activates

The agent's authority under the MPOA does not begin immediately. It activates only when the principal's attending physician certifies in writing and files the certification in the principal's medical record that the principal lacks the competence to make health care decisions. Once activated, the agent may make any health care decision the principal could make if competent, subject to the limitations expressed in the document. After consultation with the attending physician and other health care providers, the agent must make decisions according to the agent's knowledge of the principal's wishes, including the principal's religious and moral beliefs, and if those wishes are unknown, according to the agent's assessment of the principal's best interests.

Statutory Limitations on Agent's Authority

Notwithstanding the broad grant of authority, Texas law expressly prohibits the agent from consenting to: (1) voluntary inpatient mental health services; (2) convulsive treatment; (3) psychosurgery; (4) abortion; or (5) neglect of the principal through the omission of care primarily intended to provide for the comfort of the principal. The principal retains the right to object to treatment being given to or withheld from the principal at any time, regardless of whether the MPOA is in effect or whether the principal is competent.

Duration, Revocation, and Effect of Divorce

The MPOA is effective indefinitely once executed and delivered to the agent, unless revoked or the principal becomes competent. The principal may revoke the MPOA at any time by: (1) notifying the agent or a health care provider orally or in writing, or (2) executing a subsequent MPOA. Importantly, if the agent is the principal's spouse and the marriage is dissolved, annulled, or declared void, the agent-spouse's authority under the MPOA is automatically revoked unless the MPOA expressly provides otherwise. Healthcare providers and their personnel who act in good faith in reliance on a valid MPOA are protected from civil and criminal liability.

Directive to Physicians (Living Will)

Overview and Purpose

A directive to physicians (commonly referred to as a living will) allows an individual to pre-designate specific wishes regarding the administration, withholding, or withdrawal of life-sustaining treatment in the event of a terminal or irreversible condition. Texas law permits a competent adult to execute a written directive regarding medical care decisions, including the withholding or withdrawal of life-sustaining treatment. While the MPOA grants an agent broad decision-making authority, the directive to physicians speaks for the principal directly and in the principal's own voice regarding end-of-life preferences.

Key Definitions

Two conditions trigger the directive's operation. A terminal condition is defined as "an incurable condition caused by injury, disease, or illness that according to reasonable medical judgment will produce death within six months, even with available life-sustaining treatment." An irreversible condition is one that may be treated but is never cured or eliminated, that leaves a person unable to care for or make decisions for themselves, and that is fatal without life-sustaining treatment. Life-sustaining treatment means treatment that sustains life and without which the patient will die — including life-sustaining medications, mechanical breathing machines, kidney dialysis, and artificially administered nutrition and hydration — but expressly excludes pain management medication and comfort care.

Form and Execution

Texas provides a statutory written directive form. The directive must be signed by the principal (the declarant) and witnessed by two competent adult witnesses. The directive form allows the declarant to indicate one of two choices for both terminal and irreversible conditions: (1) requesting that all treatments other than those needed for comfort be discontinued and that the physician allow the declarant to die as gently as possible, or (2) requesting to be kept alive using available life-sustaining treatment.

The Relationship Between the MPOA and the Directive

A client should understand that the MPOA and the directive to physicians serve related but distinct functions and that both should be included in a complete estate plan. The MPOA designates a trusted agent to make all health care decisions if the principal is incapacitated — a flexible document that empowers a person to respond to changing circumstances. The directive to physicians speaks directly from the principal on specific end-of-life preferences, removing the burden from family members or agents of having to make those difficult decisions. If a principal executes both documents, they should be reviewed together to ensure consistency; in the event of conflict, the provisions should complement rather than contradict each other.

Practical Implications

A properly drafted Texas estate plan typically includes all four core documents: a will (or a will paired with a revocable trust), a statutory durable power of attorney, a medical power of attorney, and a directive to physicians. These documents function as a coordinated set. The will addresses asset distribution at death; the DPOA handles financial management during life and incapacity; the MPOA governs health care decision-making during incapacity; and the directive to physicians addresses end-of-life preferences directly.

Without the financial DPOA, a family may need to seek a costly and time-consuming court-supervised guardianship to manage a loved one's financial affairs. Without the MPOA and the directive to physicians, medical providers may be uncertain how to proceed, families may disagree about treatment decisions, and courts may need to appoint a guardian of the person. The documents should be reviewed and updated after major life events, including marriage, divorce, the birth of children, the death of named agents or beneficiaries, a significant change in assets, or a move to or from Texas.