When creating a plan for your estate, one of the most common tools is a last will and testament.
This is a document that states how you wish for your estate and all your assets to be distributed upon your death.
Having a properly executed and valid will is one of the most important estate planning tools to ensure that your loved ones are taken care of after your passing. When you pass away without a will in Texas, the estate is subject to “intestate succession” rules. In other words, you won’t get to choose where things go without a will – instead, state law chooses where.
Taking the time to create a valid and properly executed last will and testament with a licensed probate attorney will ensure that your final wishes are enacted as you see fit, and that your loved ones and assets are taken care of in the manner you intended.
Requirements for a Valid Will in Texas
Each state has different guidelines concerning the requirements for a valid will. In Texas, these requirements are:
- The will must be in writing. A will cannot be verbal. It needs to be in writing. Note that a will needs to be physically signed to be valid, so a digital version will not work!
- The testator must be at least 18 years old. However, there is an exception if the testator is married or serving in the military
- The testator must be of sound mind and memory when creating, making decisions regarding their final wishes, and signing the will.
- The testator must make the will freely and voluntarily. This means that the will was done without coercion or external pressure from other people.
- The will must meet all signature and notarization requirements, which includes the presence and signature of two credible witnesses at the time of the testator’s signing. The witnesses must be at least 14 years of age, and they cannot be beneficiaries under the will.
See Chapter 251 of the Texas Estate Code for more details.
Note that laws and requirements are always subject to change! Make sure your will is up to date with current requirements. An attorney can help to verify that for you.
Self Proving Affidavit
In Texas, a self-proving affidavit is a legal document that helps to confirm a will’s authenticity. It’s typically signed at the same time as the will.
It’s a separate document that declares that the will was made correctly and without pressure. The will’s creator and the witnesses sign the affidavit.
While a self-proving affidavit isn’t necessary for a valid will, it can make a future probate process easier by providing clearer proof of the will’s validity without needing witnesses to testify in court.
Types of Wills
There are several types of wills that can be recognized as legally valid in the state of Texas when creating an estate plan.
Each type has their own set of requirements, but can serve different purposes. Here are some common types of wills in Texas:
- Simple Wills: These are the most common types of wills, and they can dictate how assets are distributed to beneficiaries, establish guardianships for wards, and/or establish a trust. These wills are typed and signed by the decedent and two witnesses.
- Holographic Wills: These are handwritten wills that are signed, dated, and written entirely in the testator’s own writing. Although it does not need the presence of two witnesses to establish its validity, it must meet the other requirements in order to be recognized as a valid will in Texas, including the testator being over 18 years of age and being of sound mind and memory.
- Pour-Over Wills: These types of wills are created alongside a trust, usually as a “backup” in case certain assets are not included in the trust or if the trust is deemed invalid at a later date.
- Reciprocal Wills: These types of wills, also known as “mirror wills” due to being nearly identical to one another, are typically used by spouses. The spouses leave their assets to each other, and then leave those assets to the same beneficiaries upon their death.
- Joint Wills: More uncommon than other types of wills, these wills are typically created by spouses. They can be inflexible and binding on all parties, as the language provides the surviving spouse with their deceased spouse’s property, which is then passed on to their beneficiaries upon the surviving spouse’s death. If changes need to be made to the joint will, they would need to be made while both spouses are alive.
- Living Wills: These types of wills outline the testator’s wishes regarding medical care and treatment in the event of incapacitation.
Contesting a Will
Wills generally have to go through probate in Texas. Probate is the court process of determining which assets go to which people after someone’s passing.
A will contest is when the validity of a will and its contents are contested by someone, which might include the testator’s heirs, excluded beneficiaries, or beneficiaries from a previous will to name a few.
Common reasons to contest a will include:
- Lack of testamentary capacity
- Undue influence
- Fraud
- Forgery
If someone believes that there are sufficient grounds to contest a will in probate court, that person should contact an experienced probate litigation attorney to determine next steps and strategy.
Conclusion: Last Will and Testament in Texas
The creation of a last will and testament is an important step in many estate plans, ensuring the orderly distribution of assets and the fulfillment of one’s final wishes.
In Texas, specific requirements must be met for a will to be considered valid, and individuals are urged to engage with licensed probate attorneys to navigate the intricacies of estate law effectively.
Whether you are creating a will for the first time, updating an existing will, or trying to figure out where to begin, our team of attorneys at Duffley Law are here to help.
Contact us today to schedule a FREE consultation and discover how we can assist you in creating an effective estate plan.