Under Texas law, a will does not need to be notarized. This is true for a holographic will, a handwritten will and a formal will. A formal will is one that is typewritten and sworn to by at least two witnesses age 14 or older. A testator, or person who creates a will, can choose to have a will notarized.
The point of notarizing a will is to make it self-proved. When a will is self-proved, and there is a conflict or question regarding the will, it is not required that witnesses testify before the court as part of the probate process. If a will is not self-proved, and a party questions whether a document is a valid will, the attesting witnesses must testify about whether they signed the will and under what circumstances.
Self-Proving Affidavit for Formal Will
A testator can make a formal will self-proved by attaching or annexing a self-proving affidavit to the will. The affidavit must be signed by the testator and at least two attesting witnesses. Alternatively, the testator can simultaneously execute, attest and make a will self-proved before an officer authorized to administer oaths. This person is typically a notary public. When a notary administers the oath, they should affix their official seal to the self-proving affidavit.
In a self-proved will, the testator must include a specific affidavit as a section in the will regarding the execution and signing of the will by themselves and the attesting witnesses. A testator can make a will self-proved at the time they execute the will or at a later date during the lifetime of the testator and the witnesses.
Generally, a self-proved will may not be treated differently than a will that is not self-proved. A self-proved will may be contested, revoked or amended by a codicil, a document to modify a will, in the same manner as a will that is not self-proved.
Self-Proving Affidavit for Holographic Will
A testator can make a holographic will self-proved by attaching or annexing an affidavit to the holographic will. The affidavit must state that the instrument is the testator’s will. It must further state the testator was 18 or older when the will was executed, or if the testator was younger, the testator was or had been married or is a member of the armed forces of the U.S., an auxiliary of the armed forces of the U.S. or the U.S. Maritime Service at the time the will was executed.
The affidavit must further state that the testator was of sound mind at the time the affidavit was executed and the testator has not revoked the will.
Notaries and Administering Oaths
A notary in the state of Texas may charge a fee of $6.00 for administering an oath with a certificate and seal. This means that a notary may charge $18.00, or $6 times three, for the testator and two witnesses, to administer the oaths for a formal will or a self-proving formal will. A notary may charge $6.00 to administer an oath for a holographic will, or $6 times one, for the testator only.
Requirements Regarding Signing a Will
A will does not have to be signed in Texas for the will to have legal effect in the state. The will can be signed in any location, but it must have been created in compliance with the laws of that state or country.
What a Will Must Have
In order for a document to be considered a last will and testament in Texas, the document must be in writing. It must be written by a testator who is 18 years of age or older, or is or has been married, or is a member of the armed forces of the U.S., an auxiliary of the armed forces of the U.S. or the U.S. Maritime Service. A testator must sign and date the will, preferably at the end.
The testator must have been of sound mind when they created the will. The testator must show they understand what it means to create a will and they understand the will is meant to leave property to beneficiaries, people who will receive property under the will after the testator's death. If the testator creates a holographic will, the will must be entirely in the testator’s own handwriting.
If a testator creates a formal will, the will should be typewritten. A testator must sign a formal will in the presence of two credible witnesses who do not receive property from the will and are at least 14 years old. A testator does not need to use the services of an attorney or engage in estate planning to create a will.
Helpful Tips to Draft Wills
A testator should number the pages of the will, as in “page 1 of 3” and put them in order. The testator should title the will, “Last Will and Testament” and begin with language to show that they know what the document is and what it will accomplish. For example, a testator could begin the will with the statement:
“I, Janet Smith, of Houston, Texas, being of sound mind and fully understanding the nature and extent of my property, hereby declare this document to be my last will and testament. I hereby revoke all other wills and codicils I have made that predate this document.”
Note that the actions in this section are recommended as helpful tips, but not legally required.
Revoking a Will
A court may not prohibit a person from executing a new will, executing a codicil to an existing will or revoking an existing will or codicil in whole or in part. A person may disregard a court order that prohibits such actions without penalty or sanction. A testator may not revoke a written will or a specific clause in a written will except by a subsequent will, codicil or written declaration that is executed with the same formalities. Alternatively, a testator may revoke a will by destroying or canceling a prior will, or causing it to be destroyed or canceled in their presence.
The intent to destroy a will and the act itself must be simultaneous. For example, a valid revocation of a will would involve a testator saying, “I destroy this will dated April 30” while they tear up the will. It would not be a valid revocation if a testator said they wanted to destroy the will on April 29, and then accidentally shredded it the next day.
When a testator creates a new will, it does not have to be notarized. But if the testator chooses to make the new will self-proved, they would need a notary to administer an oath to them. If the will is a formal will, the notary would need to administer the oath to at least two credible witnesses as well.
Notarization of Wills During COVID-19
In April 2020, Texas Governor Greg Abbott temporarily suspended statutes that require appearance before a notary public to execute a self-proved will. The suspensions temporarily allowed for appearances before a notary public via video conference when executing self-proved wills. Texas already allowed online notarization of wills, but the online procedure may only be used to notarize an electronic signature. An individual who has questions about how to work with a notary through technology should reach out to the notary about the possible methods.
- Harris County Robert W. Hainsworth Law Library: Online Notarization
- Office of the Texas Governor: Governor Abbott Temporarily Suspends Certain Statutes to Allow for Appearance Before Notary Public Via Videoconference
- Texas Estates Code: Chapter 251, Fundamental Requirements and Provisions Relating to Wills
- Texas Secretary of State: Notary Public Educational Information
- Texas Estates Code: Chapter 253, Change and Revocation of Wills
Jessica Zimmer is a journalist and attorney based in northern California. She has practiced in a wide variety of fields, including criminal defense, property law, immigration, employment law, and family law.