Not all states recognize handwritten wills—also known as holographic wills—as valid.
Every state has its own rules, so a will can be valid in one place but not another.
Handwritten wills in Texas are not only valid but just as effective as a typed will.
That being said, a handwritten will is not the most reliable way to transfer property at death.
It’s best to work with an experienced estate planning attorney who can create a typed will that satisfies all state requirements as well as your wishes.
In this article, our Austin, Texas estate planning lawyers go over everything you should know about holographic wills in Texas.
The Definition of aHolographic Will
A holographic will is a will that is handwritten and signed by the person creating it (the testator). The requirements for a valid holographic will vary by state.
Requirements of Texas Holographic Wills
Creating a holographic will that a court will honor is not so simple. There are still legal requirements for the will to be valid. A holographic will in Texas is valid only if:
- The will is handwritten entirely by the testator,
- The will is signed by the testator, and
- The testator had testamentary capacity and intent at the time he or she created the will.
Let’s break all of these requirements down further.
Handwritten by the Testator
The testator must handwrite the entire will. The will is invalid if someone else writes it and the testator just signs it.
Additionally, any part of the will that is typed will be disregarded. Only handwriting will satisfy this requirement for holographic wills in Texas.
Signed by the Testator
The testator’s signature doesn’t have to be his or her full name. An “X” or some other identifying mark made by the testator will suffice as a signature.
Testamentary Capacity and Intent
Testamentary capacity is the testator’s mental ability to create a will. This is sometimes called being of “sound mind.”
To establish testamentary capacity, the testator must have the ability to do the following:
- Understand that he or she is creating a will,
- Understand the effect of creating a will,
- Know what property he or she has,
- Be able to identify family members, and
- Mentally process that he or she is creating a will and forming a reasonable judgment about it.
Testamentary intent is the testator’s intent to create a will and distribute his or her property at death. The court can find evidence of testamentary intent if the testator uses language like “I give,” “I bequeath,” or “I transfer,” when creating the holographic will.
The testator must also accurately describe the property he or she wants to transfer and identify the person, people, or entity who will receive it.
Including a date on the will is another indication of the testator’s intent to create a valid will.
A holographic will in Texas is effective until the testator revokes it.
What Happens If a Holographic Will is Invalid?
If the holographic will does not meet the requirements, the testator’s assets will transfer according to Texas intestate succession law.
Under this law, there is a hierarchy of family members that will inherit the assets, depending on who survives the testator.
The first person in line to inherit is the testator’s spouse, then children, then parents, and so on. Unfortunately, this can result in family members getting assets that the testator did not intend for them to inherit—or being left out.
Is a Holographic Will a Good Idea?
While it may be tempting to handwrite a will, it is not the most secure way to transfer property and provide for family members.
Holographic wills are problematic for several reasons. First, the testator typically does not know the requirements for a valid holographic will in Texas.
This means that the court will need to intervene to interpret the testator’s intent and determine if what the testator created is even valid.
Second, holographic wills open the door for beneficiaries of the estate or other interested parties to contest the will (i.e., argue that it is not valid).
This can lead to long delays in administering the estate and strain relationships within the family.
Certainly, a holographic will is better than nothing, particularly if there is an emergency situation. However, a thorough, comprehensive, and well-drafted will is best.
Contact a Texas Estate Planning Attorney Today for Help Drafting Your Will
Relying on a handwritten will in Texas is risky. Although it might be the fastest and cheapest way to plan now, it could cost your estate more in the long run. If the goal is to provide for your family, avoid a holographic will.
Whether you need a simple will or require something more complex, we have the experience to create a will that suits you.