When you create an estate plan, you may make a will to appoint an executor to manage your estate and direct the disposition of your assets after your death. But what requirements do you have to meet to ensure your executor and family can enforce your will under Texas law?
Basic Requirements for Wills in Texas
Under Texas law, a person must meet basic requirements to make a will. First, a person must be:
- At least 18,
- Married or divorced, or
- A member of the U.S. Armed Forces, an auxiliary of the U.S. Armed Forces, or a member of the U.S. Maritime Service
A person must also have a sound mind and the power to make a will. Having a “sound mind” includes possessing testamentary capacity – the ability to understand the nature of one’s estate and the consequences of disposing of those assets through a will. Furthermore, a sound mind means a person making a will cannot act under undue influence, coercion, or fraud.
Other requirements under Texas law for wills include:
- Wills must be in writing.
- The testator must sign the will or direct another person to sign it for the testator in their presence.
- At least two credible witnesses aged 14 or older must attest to the will by signing the document in their handwriting in the testator’s presence.
By attesting to the will, a witness asserts that the testator has signed the document in their presence or acknowledged it as the testator’s last will and testament.
Finally, a will should indicate an intent to distribute one’s estate after death. The document can communicate this intent by bearing the title “Last Will” or “Last Will and Testament” or including language in which the person making the will declares the document as their will or states that they wish to distribute their estate after death.
Written vs. Holographic Wills
However, Texas recognizes holographic wills. Holographic wills differ from written wills in the method of execution. A written will requires at least two witnesses to attest to the will. Conversely, a holographic will becomes effective solely because the testator wrote the document entirely in their handwriting. Thus, a person can create an enforceable will by writing out their will with a pen or pencil and signing the document in their handwriting.
Notarization and Self-Proving Affidavits
Texas law also allows for the creation of a “self-proved” will. A will can become “self-proving” if it has a self-proving affidavit signed and sworn to by the testator and witnesses attached to it or contains a section with the language required by §251.1045 of the Estates Code. A testator and their witnesses must sign the self-proving affidavit or the self-proving language in the will in front of a notary public, who verifies and certifies the testator’s and witnesses’ identities. Although a person does not need a self-proved will for a court to accept and enforce their will, having a self-proved will can make getting a will admitted to probate. A self-proved will eliminates the need to call the witnesses to the will to testify in a probate case if a party challenges the will’s validity.
Common Mistakes That Can Invalidate Wills
Examples of errors that can invalidate a will include:
- Not signing the will
- Having an insufficient number of witnesses for a written will
- Creating a will under circumstances indicating coercion or undue influence
- Creating a new will without including language expressly revoking prior wills
Contact an Estate Planning Attorney Today
When you wish to create a will in Texas, an experienced estate planning lawyer can help you draft an enforceable document that will carry out your goals and intentions for your estate after your death. Contact Carroll Law Group, PLLC, today for an initial consultation to discuss your legal options.