Executing a Valid Will in Texas
This legal guide will walk you through the requirements for a valid Last Will and Testament in the State of Texas. A Last Will and Testament is a legal document that primarily directs for the distribution of your property after you die.
Legal CapacityIn order to be legally capable of making a Will in Texas, the Testator (the person making the will) must be one or more of the following:
- 18 years of age or older
- currently, or have been, married
- member of the armed forces of the United States
Testamentary Capacity and IntentIn addition to Legal Capacity, the Testator must also have Testamentary Capacity, which is generally defined as having the intent to make a Will and being of "sound mind". Testators in Texas must under each of the following 5 elements:
- the fact that the Testator is making a Will
- the effect of making a Will
- the nature and extent of your property
- the persons that are the "natural objects of your bounty" (i.e., your family)
- the ability to understand how each of these elements relate to one another in order to form an orderly plan for the disposition of your property at your death
In addition to Testamentary Capacity, the Testator must have the intent to make a Will at the time that it is executed. In other words, the Testator must want to make a writing that directs how his or her property will be distributed when he or she dies.
Formalities of Making a WillLike all states, Texas has strict rules in place to ensure that a Testator's Will is actually their Last Will and Testament. These formalities must be met, otherwise the directions in the Will will not be effective. Texas allows for 2 types of written Wills.
- Holographic Will: this is the simplest form of Will in Texas as it allows the Testator to make their Will without the need for witnesses or a notary public so long as the entire Will is in the Testator's handwriting and is signed by the Testator. After the Testator's death, witnesses familiar with the Testator's handwriting provide evidence to the probate court to support the admission of the Will to probate.
- Attested Will: an attested Will is a Will that is not in the Testator's handwriting. This may be a typewritten Will or a Will written in the handwriting of someone other than the Testator. Because the Will is not in the Testator's handwriting (which can be supported by the testimony of knowledgeable witnesses), Texas requires that these Wills be signed by the Testator witnessed by at least 2 credible, disinterested persons over 14 years of age.
In addition to the attestation requirements, Texas Law allows for Wills to be "Self-Proved", which helps to eliminate the need for court testimony of witnesses to attest to the Testator's Legal Capacity, Testamentary Capacity, and Testamentary Intent.
- Nuncupative (Oral) Wills: as of September 1, 2007, Texas no longer allows for Oral Wills (i.e., a Will that was spoken by the Testator to another person or recorded in some audio medium).
IntestacyIf a person does not make a Will, or if the Will does not meet all of the strict requirements of the state where the Will is being admitted to probate, then the person will be deemed to have died Intestate. The Laws of Intestacy are, in effect, a Last Will and Testament prepared by the State of Texas for persons that die Intestate. Many times, the Laws of Intestacy provide for a distribution of property in a manner that is not how the Testator would prefer.