LEGAL GUIDE
Written by attorney Stephen A. Mendel | Feb 14, 2012

Texas Law on Nuncupative Wills

Several states allow their residents to create oral wills, but only in very limited situations and only if they comply with their state’s statute governing the use of oral wills. In Texas, nuncupative or oral wills are valid only for bequests of personal property. Under the statute of frauds, transfers of land must be in writing. As such, at common law, you can transfer land by written deed or contract only, regardless of whether you transfer it while you are alive or after death.

The legal effect of an invalid oral will is dying without a will. In other words, if you created an oral will before you died, and your witnesses do not attempt to probate it within six months of your death, Texas law considers you to have died intestate, which means you died without a valid written will. A person who dies intestate is subject to the state’s intestacy laws.

Pursuant to the state’s intestacy laws, a court will classify your property as separate or community property. Community property is generally all property that you purchased or earned during marriage, except for separate property. Separate property is real or personal property acquired before marriage. Separate property also includes gifts and inheritances to one spouse before or during marriage. If you die intestate, the community property will generally pass to your surviving spouse and children. If your children predecease you, your community property will pass to the children’s children or your grandchildren and your surviving spouse. The intestacy statutes establish an order of priority if you die without surviving children, descendants or a surviving spouse. The intestacy laws are actually a little more involved, so please keep in mind that the foregoing is a very broad summary.

If you have questions about probate or intestancy, then please call us for a free initial consultation. We at the Mendel Law Firm can help you uncover your options and choose the strategy that is best for you.

Additional resources provided by the author

The Mendel Law Firm, L.P. 1155 Dairy Ashford, Suite 104 Houston, TX 77079 O: 281-759-3213 F: 281-759-3214 Email: [email protected] www.mendellawfirm.com

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