Under Texas state law, an individual can create their own last will and testament by hand writing the document. This type of will is called a holographic will. A holographic will is considered a valid will when it complies with the provisions of Texas Estates Code Chapter 251 that apply to handwritten wills.
A formal will contains an attestation clause signed by two or more credible witnesses at least 14 years of age in their own handwriting in the testator’s presence. But Texas law does not require a holographic will that is written entirely in the testator’s handwriting to be attested to by witnesses or signed before a notary.
Requirements for a Holographic Will
Just as with a formal will, a holographic will must be executed by a person of sound mind. The testator, or person who creates the will, must be 18 years or older. If not 18, they must be currently or formerly married or 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. The will must name beneficiaries, individuals who receive the assets in the estate.
A holographic will must be entirely in the testator’s own handwriting. No part of the will can be typed or printed. The will should state who will serve as the independent executor, the individual who will manage the estate through the probate process.
It is helpful for the testator to state in the will that the independent executor may serve without bond. This means the executor will not have to provide money to the court for a bond to insure against wrongdoing. The testator must sign and date the will.
Other Elements of a Texas Will
Being of sound mind requires that the testator is aware of what property they own, understands that the document they are writing is a will, and knows that the will governs how the property will be distributed after they die. The testator must also have the intent to write a will. A testator can show they clearly want to write a will and the document in question is that will by titling the document, “The Last Will and Testament of (their name).”
The opening line of the will should state the testator’s identity and what they intend to do with the document. For example, “I, John Doe, of Dallas, Texas, on October 30, 2021, am of sound mind. I am writing this holographic will to dispose of my estate after I pass.”
If a testator has written a previous will, they should write a statement into the new will to revoke all prior wills. An example of a revocation would read, “I expressly revoke all prior wills. I invalidate them and mean for this document to have sole legal effect.” It is a good idea for the testator to destroy all prior wills written before the current will.
Distributing the Property
The remainder of the will should consist of instructions distributing certain property or percentages of property in the estate to the beneficiaries. The testator should name the beneficiaries with their full, legal names. If there are multiple people in the family with the same name, it is a good idea for the testator to differentiate between the parties by relationship and suffixes. For example, effective language might read, “I leave my 2019 Mustang to my second cousin, Frank Rivera, Sr. I leave my 2021 Corvette to my brother, Frank Rivera, Jr.”
The testator should write a residuary clause into the will. This takes care of anything that might be left over after the distribution of all specified property. A sample residuary clause would read, “As for the rest, residue and remainder of my estate, I want it to go to my sister, Sandra Hernandez.” After the testator dies, the executor or administrator of the will must file the original will in probate court for it to take effect.
No Need for a Lawyer
A testator does not need the help of a lawyer to create a holographic will. Yet they would benefit from seeking the advice of an estates and trusts attorney to engage in estate planning before writing their will. This will help them to learn what assets, such as funds in a bank account, will not be distributed through the will.
Definition of a Self-Proved Will
A self-proved will is a will with a self-proving affidavit attached signed by the testator and witnesses. Alternatively, a self-proved will may also be a will that is simultaneously executed, attested and made self-proved before an officer authorized to administer oaths, such as a notary.
The testimony of witnesses in the probate of a self-proved will may be unnecessary. A self-proved will may be made self-proved at the time the will is executed or at a later date during the life of the testator and the witnesses. A self-proved will may be contested, revoked or amended by a codicil in the same way as a will that is not self-proved.
A will written entirely in the testator’s handwriting may be made self-proved at any time during the testator’s lifetime. It is required that the testator attach or annex the affidavit to the will. The affidavit should state that the instrument is the testator’s will, the testator was 18 years or older when the will was executed or the testator was or had been married, was 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 when the will was executed. Further, the will should state the testator was of sound mind and had not revoked the will at the time they executed the affidavit.
Codicil to a Holographic Will
A codicil is a document that modifies a will. In Re Estate of Wlecyk (2021) reveals that a properly executed codicil can amend a will. The codicil must follow the same formalities as the will itself. If the codicil amends a holographic will, the codicil should be entirely in the testator's handwriting. If the codicil is to a formal will, it should typed and signed by two witnesses. The codicil must identify the will that it modifies.
Advice for Creating a Texas Last Will and Testament
When a will contains multiple pages, the testator should number each page. They should use the format, “page 1 of 5.” It is helpful to use three staples across the top of the document to show the testator did not add or take out pages after signing the will. The testator should sign the will at the end of the document. It is helpful to put the new will in an envelope and seal it.
The testator should let friends and family know where the will is located. The location should be safe, but not a safe deposit box. Opening a safe deposit box after the testator has died may depend on court approval. All of these suggestions are recommended, but not required.
Community Property in the State of Texas
Texas is a community property state. This means that assets acquired during a marriage belong to both spouses equally. When the testator dies, the other spouse continues to own their half. The will of the testator covers only the property owned by the decedent, the party who passed. For example, say two spouses owned a vacation home that they bought during their marriage. When the first spouse died, he could convey his half of the real property to another party.
Bank Accounts and Non-probate Assets
A financial account such as an account at a bank or credit union does not go through probate. The bank gives the money directly to the beneficiary named on the account. This is also true for pension plans, IRAs and insurance policies, such as a life insurance policy. A will does not distribute assets placed in a separate trust.
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.