Basics of a Texas Will

A Will is a legal document that has several old willfunctions.  It typically allows you to identify your beneficiaries, designate the way in which your property will be distributed, nominate an executor to manage your estate and distribute it according to the wishes expressed in the Will.  It can also disinherit people, nominate a legal guardian for any minor children, provide for trusts to hold your gifts to some or all of the beneficiaries and describe special terms and definitions to be used in construing the Will.

To make a valid Will in Texas, you must have legal capacity, testamentary capacity, and testamentary intent, and follow certain formalities.

  • Legal capacity.  In Texas, legal capacity is defined as the person being 18 years of age or older, being or has been married, or being a member of the armed forces of the United States.
  • Testamentary capacity.  To have testamentary capacity one must be of “sound mind.”  This means that at the time the person makes their Will they have the mental ability to understand:
    • they are making a will;
    • the effect of making a will;
    • the general nature and extent of their property;
    • their next of kin and the natural objects of their bounty (e.g. their relatives and loved ones);
    • the fact that they are disposing of their assets;
    • have sufficient memory to collect in their mind the elements of the business transacted and hold them long enough to form a reasonable judgment about them.
    • Testamentary intent.  Closely aligned with testamentary capacity is testamentary intent.  That is, the person making the Will must intend that the document they are signing is making a revocable disposition of their property to take effect at their death.  The actual wording in the Will is often looked to as evidence of such intent.
    • Formalities.
      • Texas recognizes two types of written Wills.  Texas does not recognize oral wills.
        • An attested Will is the most common type of Will. To be valid, it must be in writing, signed by the person making the Will, or another person at the direction of the person making the Will and in their presence, and attested by at least two credible witnesses over the age of 14.  The person making the Will must be present when the two witnesses sign their names to the Will.
        • A holographic or handwritten Will is a Will that must be written entirely by the person making the Will, and it must be signed and dated. The Will does not need to be witnessed by anyone else.  But it is important to note that no writing by others or typing may be part of the Will.
  • Self-proving Affidavit.  The Texas Estates Code provides the person making a Will with the option of adding a self-proving affidavit to the Will.  This is an affidavit containing certain representations that is signed before a notary public by the person making the Will and the two witnesses to the signing of the Will.  When a Will is probated, the self-proving affidavit substitutes for in-court testimony of witnesses as to the validity of the Will, which saves considerable time and expense.

If a Will does not meet all the requirements set forth by the Estates Code, it will be declared invalid, meaning that your estate could be distributed according to a statutory formula rather than the way you would have preferred.  Preparing a Will may seem rather simple, but if not prepared by an attorney focusing his or her practice on estate planning, mistakes can easily occur and misleading statements can be included without proper explanation or definition.  To save your estate additional expenses of probate and to ensure that your wishes are carried out as you intend it is best to consult with an estate planning attorney in preparing and executing your Will.

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