Will for Married Individual
(Trust(s) for Spouse and/or Children) (TX)

Summary

This template is a will for a married client in Texas to pass probate assets to a surviving spouse, or, if the spouse predeceases the testator, to their children in trust. Optional distribution provisions may be used for a testator without children. This template includes practical guidance, drafting notes, alternate and optional clauses. This will is designed for an individual who wishes to leave their property to their surviving spouse, either outright or in trust, and thereafter to the children in trust. In the event the testator's assets will exceed the federal estate tax applicable exclusion amount ($13.99 million in 2025 for an individual), it is advantageous to utilize either the disclaimer trust or the marital trust provisions. By funding a trust for the benefit of a surviving spouse, the couple could defer any and all estate taxes until the death of the survivor. If the testator is not survived by their spouse, the assets pass to the testator's children in either (1) a single "pot" trust for their benefit, or (2) separate share trusts. Pot trusts aim to distribute assets equitably to a group of children or other beneficiaries of a possible range of ages. The purpose of this trust arrangement is to avoid unjustly enriching beneficiaries who have already received the benefit of support through most of their life while younger minor beneficiaries still have a longer period of need. Rather than dividing the trust in equal fractional shares or percentages to each child, such as the case with separate share trusts, the trustee has discretion to delay the division of trust assets until a certain date, such as when the youngest child or beneficiary turns a specified age. Until then, the money is held in one common fund or pot, and can be spent on any beneficiary at the trustee's discretion. Establishing individual separate share trusts, as opposed to a single pot trust, is appropriate when all of the beneficiaries have reached the age of majority. The individual trusts usually provide an equal share of principal for each child but can be modified to provide unequal shares. The trustee has discretion in providing for each beneficiary from their own trust until they attain the specified age. The circumstances of the testator and beneficiaries, as well as the specific intentions of the testator, may require modifications to this template. For a full listing of key content related to estate plans for married or partnered people in Texas, see Estate Plan for Individual with Spouse or Partner Resource Kit (TX). For an in-depth discussion of wills see Purposes and Uses of a Will (TX) and Requisites, Instrumentation, and Will Provisions (TX). For an in-depth discussion of the federal estate tax see Principles of the Federal Estate Tax and Impact of the Tax Cuts and Jobs Act on Federal Estate.