A last will and testament is a foundational estate planning document.
In a will, you can lay out how you want your assets distributed upon your death. You also name an executor who will oversee your estate.
While this concept is straightforward in principle, there are many factors to consider when drafting a will.
Most importantly, you need to know whether the document meets Texas will requirements under state law.
At Massingill, we help individuals and families of all net worth levels and backgrounds create effective estate plans.
We can help you clarify your wishes, decreasing the likelihood of any unnecessary familial disputes in the future.
What Are the Requirements for a Will to Be Valid?
On one hand, Texas lawmakers want to encourage people to draft wills because they provide much-needed clarity when settling someone’s estate.
However, at the same time, there is often a lot at stake after someone passes on, which can lead to unanticipated drama. Thus, Texas law imposes a few requirements to draft a valid will.
Will Capacity Requirements
First, the testator (the person creating the will) must have the legal capacity to create a will. This requires that they are at least 18 years old, are married, or are a member of the United States military. Second, the testator must possess the testamentary capacity necessary to execute a valid will.
This requires that at the time they draft the will, they command an understanding of:
- The fact that they are creating a will;
- The practical and legal effect of creating a will;
- The property they own;
- The people who are related to them; and
- The fact that making a will eventually results in the permanent transfer of assets.
Additionally, the testator must have the capacity to make reasonable judgments about the matters contained in the will.
Generally, Texas will requirements include the need for the testator’s signature on the document.
However, if they are unable to sign the will, the testator can designate someone to sign on their behalf. There is no notary requirement for a Texas will.
Will Witness Requirements
Most Texas wills must be executed in the presence of two credible witnesses over the age of 14. A credible person is someone who does not stand to benefit from the provisions of the will.
Each witness must sign, indicating they witnessed the testator sign the will. The major exception to the witness requirements is for holographic wills.
Undue Influence
In addition to the above, a testator must be free from undue influence when executing a will.
Undue influence is a legal term referring to a situation in which someone successfully influences the testator to include something in their will they didn’t initially want to include.
For example, if someone told you that they are happy to take care of you as long as you leave them your house in your will, they may have exercised undue influence over you if that was not your original intention.
Are Handwritten Wills Valid in Texas?
Yes, holographic wills are valid in Texas, provided they are properly executed. A holographic will is one that is entirely in the testator’s own handwriting, meaning no part of the will can be typed or in anyone else’s handwriting.
These are often used on an emergency basis when someone does not have the time or ability to get to a Texas estate planning attorney.
There is no witness or notary requirement for a holographic will. While holographic wills do not need to contain the date of execution, it is always a good idea to do so.
While holographic wills may seem like the easiest type of will to create, they also frequently give rise to will contests.
A will contest is when someone challenges the validity of a will for any reason. Estate planning laws are complex, and when someone writes their own will they may use inaccurate or inconsistent phrasing.
This can lead to ambiguity, and ambiguity typically results in will challenges. If someone who was not mentioned in the will believes they should have been included, they may challenge the validity of a handwritten will.
And if the language is not airtight, they may succeed in invalidating the will.
Limitations of Wills
While wills are the cornerstone of any Texas estate plan, they are rarely sufficient on their own.
In a will, you can determine how the court will distribute your property after you die, name a guardian for any minor children (or adult children experiencing disabilities), and name an executor to oversee your estate.
However, all assets in your will must pass through probate and are subject to federal estate tax. Thus, many families also consider other estate planning tools, such as trusts, which can allow for the more orderly and cost-efficient transfer of assets.
Similarly, a will only takes effect after you die. If you suddenly become incapacitated, the person you named as an executor has no legal authority to conduct business on your behalf.
This is where a power of attorney comes in. A power of attorney gives you the ability to name another person to handle your financial affairs if you become unable to do so.
When thinking about creating a will, it is important to pinpoint what you are trying to accomplish. Often, you’ll find that a will can only get you part of the way to your desired goals.
You may need to use other estate planning tools that work in conjunction with the will. A Texas estate planning attorney can help you better understand how each of these pieces fits together. They can work with you to develop an effective estate plan.
Schedule a Free Consultation with a Texas Estate Planning Lawyer Today
If you do not yet have a will, or it’s been years since you updated your will, reach out to Massingill.
At Massingill, we have extensive experience working with families, helping them develop estate plans that they can rely on for years to come.
When you call us to schedule a free consultation, we will explain the estate planning process in clear and understandable terms. To learn more and to set up your free consultation, call 512-601-6786 today.
You can also reach us through our online contact form.
Joshua Massingill
Joshua Massingill is an attorney practicing in Austin, Texas. He serves on the Texas State Bar’s Law Practice Management Committee, the Leander Educational Excellence Foundation (LEEF) Board of Directors, and the Success-Werx Board of Advisors. He mentors young entrepreneurs in Leander ISD’s INCubatorEDU program and is active in his church.
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