A will, otherwise known as a “last will and testament,” is a legal document that allows you to identify your beneficiaries and designate the way in which your property consisting of real and personal property will be distributed upon your death.
Wills in Texas are also used to select a personal guardian to care for your children, choose a person to manage your property for your minor children, convey decisions about your end of life care through an advance directive, and choose a trusted executor to make sure that the terms of your will is carried out. Having a valid Texas will allows you the testator, the person that makes the will, the ability to provide for your spouse, children, pets, or other loved ones.
What are the Requirements of a Valid Will in Texas?
A valid and executed will makes it less likely that someone will contest your will later on down the road. In order to have a valid will in Texas, you must have legal capacity, testamentary capacity, and testamentary intent. While these formalities may seem confusing they are not that difficult to attain.
Legal capacity is achieved by being over the age of 18, being legally married in Texas, or being a member of the armed forces. Testamentary capacity is simply being of “sound mind.” This means that at the time of the making of the will you are able to understand what you are doing, where you are, and the extent of your property. Lastly, you have testamentary intent if at the time you sign your will, you intent to dispose of your property at the time of your death.
Read More About: Ultimate Guide to creating a Will
Likely, you are an adult, and the simple action of creating a will to take care of your loved ones will meet the above formalities. As discussed below, Texas law allows for the the creation of a self-proving will through self-proving affidavits, which fulfills the above requirements without the need for in-court testimony by the witnesses.
In addition to having legal capacity, testamentary capacity, and testamentary intent, there are further requirements you need to follow depending on the type of will you are wanting to create. Texas recognizes two types of wills:
- Attested Will: An attested will is the most common type of will. In order to have a valid attested will the will must be in writing, signed by you the testator, and signed in the presence of at least two witnesses over the age of 14.
- Holographic Will: A holographic will is a will that is handwritten entirely by you, the testator, and signed by you. With a holographic will, there is no requirement that it be signed in the presence of any witnesses
Texas law allows you to the option of adding a self-proving affidavit to your will, which saves a great amount of time and money down the road.
What are Self-Proving Affidavits in Texas?
In Texas, the statutes allow for you to add self-proving affidavits to your will. A self-proving affidavit is essentially a written statement signed by the credible witnesses at the execution of the will that is then attached to the will.
This self-proving affidavit affirms that the witnesses were present at the signing of the will, that your signature was in fact made by you, that you appeared to be of sound mind, and that you were not acting under duress or undue influence.
The presence of attached self-proving affidavits often times eliminates the needs for the witnesses to the signing to appear in front of a probate court to verify the authenticity of the will.
The Executor Requirement for a Will in Texas
A valid will should designate an executor. An executor is the trusted person that you appoint to administer your estate after you pass. The executor you appoint will have a legal duty to act in the best interests of your estate. The executor manages your assets, pays off the debts of your estate, and disposes of your estate and property according to your wishes.
In Texas, the independent executor usually acts with little or no court supervision, and they do not normally need to seek the permission of the court to act in their disposition of your estate, as long as they act within the bounds of the law. The court may step in if the executor is not acting within the bounds of the law.
Do I Need a Last Will and Testament?
A last will and testament is not required by the law. However, if you do not have a valid and executed will, then your estate and property will be disbursed according to the state laws of intestacy.
The laws of intestate succession are often complex, and the outcome of intestate succession may not always match up with your wishes. Thus, it is generally advised that you create and execute a valid last will and testament to avoid this issue altogether.
Do I Need an Attorney to Create a Will in Texas?
Although not required, estate law and probate law are oftentimes complex and consulting with an experienced and qualified estate attorney is advised to ensure that you meet all of the requirements necessary to have a valid will, advise you on the different types of wills, and provide you with assurance that your estate will be distributed according to your wishes.