What Makes a Will Valid in Texas?
Creating a valid will in Texas is a critical step in ensuring that your assets are distributed according to your wishes after your passing. A valid will provides legal clarity and helps minimize potential disputes among your beneficiaries. To ensure your will is legally binding and effective in Texas, it must meet certain requirements outlined in the Texas Estates Code.
Key Requirements for a Valid Will in Texas
Legal Capacity: The testator (the person creating the will) must have legal capacity, meaning they must be at least 18 years old and be of sound mind. This ensures that the testator fully understands the implications of their decisions and is not under undue influence or coercion.
Testamentary Intent: The will must be created voluntarily, without any force or manipulation. The testator should make decisions freely and independently, without pressure from others and it should be clear that the deceased intended to make a will. A scribble on a cocktail napkin at a bar might be legible but it doesn’t necessarily mean that the testator actually intended to create a will.
In Writing: A valid will in Texas must be in writing. It can be handwritten (holographic will) or typewritten, but it must be signed by the testator. Oral wills, also known as nuncupative wills, are generally not valid in Texas. It is possible to create a trust orally but this is a separate instrument to a will. Additionally, a trust involving real estate is only valid if it is in writing.
Signature of the Testator: The testator must sign the will at the end of the document. If the testator is physically unable to sign, they can direct someone else to sign on their behalf, but this must be done in the presence of the testator and at their direction. To help ensure that the will is not challenged, it is best that this is done in front of witnesses.
Witnesses: Two credible witnesses must be present and sign the will. These witnesses should not be beneficiaries or heirs named in the will. Their role is to verify that the testator signed the will willingly and that they appeared to be of sound mind at the time of signing. Although the testator must be over the age of 18, the witness must only be over the age of 14.
Attestation Clause: While not a strict requirement, an attestation clause is a statement at the end of the will that confirms the witnesses’ presence and acknowledgment of the testator’s signing. This clause can help validate the will’s execution.
Self-Proving Affidavit: A self-proving affidavit is an optional but highly recommended element. It involves the witnesses signing an affidavit before a notary public, affirming that they witnessed the testator’s signing and that all legal requirements were met. This can simplify the probate process by eliminating the need for witnesses to appear in court after the testator’s death.
Revocation Clause: A valid will should include a revocation clause that explicitly states that the current will revokes all previous wills and codicils (amendments) made by the testator.
It’s important to note that handwritten (holographic) wills are recognized in Texas, even if they are not witnessed. However, the entire will, including the signature and material provisions, must be in the testator’s handwriting. Not one single word can be written by anyone else. While witnesses are not required for a holographic will, having witnesses can help validate its authenticity and reduce the risk of challenges.
To ensure that your will accurately reflects your intentions and meets all legal requirements, it’s advisable to consult an experienced attorney, like our attorneys at Petraborg Attorneys, who specializes in estate planning. A qualified attorney can guide you through the process, help you avoid common pitfalls, and ensure that your will is legally valid and effective in accordance with Texas law. Without a valid will you are leaving your assets to the State to distribute – and out of the control of yourself and your loved ones.