Texas law recognizes attested and holographic wills. Certain legal requirements must be followed in the drafting of wills.
Under Texas law, you can create your own will that has all of the same power and effect as one drafted by a lawyer. You can accomplish this by using a kit, typing up your own document, using special software or even writing your own will by hand for free. However, you must follow specific rules when drafting your will. Being aware of the requirements can help you ensure that your will is more likely to stand up in court.
The Texas Probate Code sets out the legal requirements for the creation of a valid will. Acquaint yourself with the following topics:
Section 57 of the Texas Probate Code establishes two requirements for individuals to have testamentary capacity. The first is that the individual must be age 18 or older, married or a member of the armed forces before making the will. The second requirement is that the testator – the person making the will – be of sound mind, which means that the testator possessed:
- adequate ability to understand the business at hand
- adequate ability to understand the legal effect of making the will
- ability to know what his belongings are and their extent
- sufficient memory to remember his belongings and the act of creating the will and the ability to form a reasonable judgment about them
To create a valid will, the testator must have the intent to create a will and for the document to dispose of his belongings at the time of his death.
Signature of Testator
The testator must sign the will. Texas law provides a broad definition of a signature, including the use of initials or an identifying mark.
A holographic will is a hand-written will. Texas law requires such a will to be completely written in the testator's handwriting. This means that a person cannot use an inexpensive will kit, fill in the blanks and try to pass it off as a holographic will. Holographic wills do not need to have a witness signature on them in Texas.
Attested wills are wills that witnesses sign, verifying the document's validity. They may be prepared by the testator or a lawyer and often are typed. Texas law requires two witnesses older than 14 to form a valid attested will. Witnesses must sign the will in the testator's presence.
Although it is not mandatory, witnesses also may sign a self-proving affidavit. This legal document provides an alternative to having a witness be hauled into court in order to testify about the validity of the will.
For a will to be both legally valid and effective in Texas, it needs to follow the guidelines below:
Make a Statement of Capacity
Declare that the document that you are creating is a will. State that you are of sound mind and body.
List your name and your marital status. Identify each person whom you consider your child.
Identify Your Property
Provide details regarding your property. State to whom you want each portion of your property to go. For example, you may bequeath your jewelry to your sister and your vehicle to your son.
Add a Residuary Clause
Include a clause that pertains to the residue, or leftover, portion of your estate. If you have failed to dispose of any property that you own at the time of your death, a residuary clause will prevent the remaining property from passing to heirs by rules of intestacy.
Review a sample will to get an idea about what the will should look like. Be sure the will is based on Texas law.
If your will does not meet all legal standards, it can be invalidated and your property can be passed through the rules of intestacy. Consult an attorney if you have any complex needs, such as wishing to disinherit someone.