Drafting a last will and testament is one of the most important things you can do in the probate process. Without one, Texas intestacy laws will govern the management and distribution of your estate. This could delay and reduce the inheritance your family receives once you have passed. It could also lead to in-fighting over your estate.
These are just some of the reasons why you should take the time to write your will. However, if you do not take the time to ensure your will meets the requirements of Texas law, your family could still face many legal challenges.
At Sheehan Law, PLLC, we have helped families across central Texas with their probate and estate planning needs. We understand what it takes to create a strong will that will hold up under the scrutiny of the law. Here are some of the Texas will requirements you will need to meet in order to avoid these challenges.
What Is a Last Will and Testament?
Part of meeting the legal requirements of a will is understanding what a will is. A testator writes a will to establish his or her wishes in regards to what happens to his or her estate. This legal document identifies the executor of the estate, and this person carries out the testator’s wishes. The document further outlines the distribution of the estate and the beneficiaries who will inherit.
In Texas, there are two types of wills:
- Holographic Wills: This document is completely handwritten and signed by the testator. No one else can write any part of it. You do not require witnesses or a notary for such a will. Texas Estates Code Sec. 251.052.
- Attested Will: This document is usually prepared ahead of time, usually by a lawyer. The testator must sign the will or a representative must sign the will while in the testator’s presence. Two witnesses of at least 14 years of age must also sign the will in the testator’s presence. These witnesses should not be beneficiaries of the will. A judge may also call these witnesses to testify if a self-proving affidavit is not attached to the will. Texas Estates Code Sec. 251.051.
Texas once recognized an oral or nuncupative will. However, Texas courts have not accepted such wills since September 1, 2017. It is also important to understand that a living will is not a last will and testament. A living will only governs a person’s end-of-life choices. It takes effect in the event that the person becomes incapacitated and/or unable to make decisions for themselves. A living will does not apply to your property or estate.
What Makes a Will Legal in Texas?
For a will to be valid in Texas you must be legally capable of making a will. You must also be of sound mind and intend to make a document that distributes your property after your passing. Here’s a further breakdown:
- Legal Capacity: To write a will you must be 18 years of age or older. Or, if you are or were once married, you may also write a will. Members of the armed forces of the United States may also write a will. Please see Texas Estates Code 251.001.
- Sound Mind: In Texas, you must be mentally able to understand that you are making a will and what effect it will have. You must understand what your property is, how much of it you have and that you are making a plan to dispose of it. You must also understand who would naturally receive the inheritance you are creating (i.e. relatives, friends, charities, etc). You are also required to understand these elements and fit them together in an organized plan.
- Intent: When you sign your will, you must have intent to create a document that dictates the distribution of your property after you pass.
What Else Do I Need to Know About Creating a Valid Will in Texas?
If you follow the above requirements, it will be easier for a judge to validate your will. However, probating your will could face different legal challenges based on how you write your will. If there is reason to believe you were not of sound mind when you wrote your will, or that you wrote it due to coercion, a judge may invalidate your will. Beneficiaries may challenge a holographic will for these very reasons. An attested will gives more protections against these challenges, especially when prior wills exist.
What will you choose will depend on your situation and circumstances. If you wish to learn more about how Texas probates wills, check out our blog series on probating wills in Texas. An experienced Austin will attorney can help guide you to the best option for your situation. Give us a call at (512) 640-0588 or fill out our online contact form if you need help getting your estate in order.