Texas Will Requirements

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Although not recommended, it is possible to write and execute a will in Texas without hiring an attorney. Individuals with a simple estate (an estate with few assets and heirs) who find themselves unable to afford an attorney may write their own will. Ideally a probate/estate planning attorney should be consulted but it is not required by law.

Understanding what is required by Texas law in order to execute a valid will is crucially important whether you hire an attorney or not. The following overview should provide you with a basic understanding of Texas wills. Most of the requirements are statutory, however, some were created by case law.

*It is important to note that Texas recognizes two types of wills: handwritten wills (holographic wills) and typewritten wills (formal wills). Many problems arise when interpreting holographic wills so I recommend writing a formal typewritten will. This overview only covers formal typewritten wills.

Under Texas law, the basic requirements of a valid formal will are that:

  • It must identify the testator (the person writing the will)
  • It must be written with “testamentary intent”
  • The testator must have “testamentary capacity”
  • The will must be executed with the requisite formalities

Identify the Testator

Your will must include your name. The best practice is to include your full name in a prominent place so there is no confusion as to your identity.

Written With "Testamentary Intent"

The testamentary intent requirement is not found in Texas statues. It is actually required by a well-developed body of case law. Texas courts have consistently required that an individual have testamentary intent when drafting their will. This means that the person must have intended to create a disposition of their property which takes effect after their death. Put another way, the person must have intended to express his testamentary wishes within the instrument for it to be considered a valid will. The easiest way to meet this requirement is by clearly labeling your will as a “Last Will and Testament” (at the top of the page like a heading). This does not definitively prove your testamentary intent but it does create a strong presumption that you had the necessary intent.

"Testamentary Capacity"

TX Probate Code Section 57 requires that an individual have testamentary capacity when drafting their will. In order to have the requisite capacity the person must be 18 year or older and “of sound mind”. The term “of sound mind” basically means the person understood the general nature and extent of his property and understood the effect of his act in making the will. The person only needs testamentary capacity on the day the will was executed. The person’s state of mind before or after executing the will is generally irrelevant.

Executed With Requisite Formalities

TX Probate Code Section 59 sets forth three execution requirements for wills:

  • The will must be signed by the testator or another person at his direction and in his presence
  • The will must be attested by two or more witnesses over 14 years of age (A beneficiary under the will should not serve as a witness because this may preclude the beneficiary from inheriting property under the will)
  • The witness must sign in the testator’s presence

Disclaimer

The information in this article is for general information purposes only. Nothing on this or associated pages, comments, answers, or other communications should be taken as legal advice. The information provided is not intended to create, and viewing of this information does not constitute, an attorney-client relationship.

© 2012 Bahin Ameri

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