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texas last will and testament

A Texas last will and testament is one of the most important parts of a complete estate plan.

Without a will, you won’t be able to ensure that your property and assets are distributed according to your wishes when you die. Because a will is so important, there are specific Texas will requirements you must comply with in order to have a valid will.

Following these requirements to the letter is an absolute must since dying with an invalid will is the same as dying with no will at all.

Texas Will Requirements

There are several important Texas will requirements a testator (the person executing the will) must follow. 

Legal Capacity

Under Texas will laws, a testator has the legal capacity to make a will if they are of “sound mind,” which usually occurs (at least in the eyes of the law) when someone reaches 18 years of age. However, turning 18 is not the only way someone becomes legally capable of executing a will.

Texas Estates Code Section 251.001 also permits execution of the will if the testator is currently married, has been married in the past, or is a member of the armed forces.

Testamentary Capacity

Testamentary capacity is a special type of capacity all testators must have to legally execute a will. Unlike legal capacity, the requirements for testamentary capacity is significantly more robust. To have testamentary capacity, the testator must, at the time they sign the will,

  • Know that they are creating will;
  • Understand the consequences and effect of creating a will;
  • Understand the general scope of their estate (in other words, a general understanding of what stuff they have);
  • Know and identify the closest surviving members of their family, called the “objects of their bounty”; and
  • Be able to understand and participate throughout the will execution process.

Each of these requirements ensures that the testator is capable and aware of what they are doing. Because a will controls the disposition of the testator’s estate—which may be of high value—these rules make it very difficult for someone to manipulate the testator.

Also keep in mind that a testator can satisfy all of the above requirements even if the testator has a diagnosis of dementia or similar cognitive decline. Even if there are only moments of lucidity, as long as that lucidity persists for the duration of the Texas will execution, the will can be valid.

Testamentary Intent

Testamentary intent refers to a testator’s intention to create a will. If the testator wants to create a will, they have testamentary intent. Generally, “intent” in the law is notoriously difficult to prove. However, with wills in Texas, the signature clause of the will generally includes language demonstrating testamentary intent.

Procedural Formalities

Finally, there are specific procedural formalities for a last will and testament. Texas Estates Code Section 251.051 establishes the procedural Texas will requirements for a valid will:

  • The will must be in writing;
  • The testator or someone in the testator’s presence and at the testator’s direction must sign the will; and
  • The signing must occur in the presence of at least two credible witnesses.

The witnesses must be at least 14 years old and must sign the will in the testator’s presence. Additionally, the witnesses cannot be beneficiaries in the will. The only exception is if the testator hand-writes the entire will (called a “holographic” will). In that case, no witnesses are required.

Can I Use a Texas Will Template?

Many websites claim to offer valid will templates that you can download and fill out easily. However, even if you hand-write any fill-in-the-blanks on the templates, it will not be valid without complying with the above Texas will requirements.

As a result, using a template may leave you with an invalid will. It’s generally a good idea to hire a Texas estate planning attorney to avoid this kind of issue.

What Happens If I Don’t Have a Valid Will?

When someone dies with an invalid will, the law treats them as if they had no will at all. This is because without the safeguards put in place by the above Texas will requirements, the integrity of the will’s provisions can’t be verified.

Instead, the testator’s property is distributed according to Texas’s intestacy laws. These laws offer a “default” method of distributing property to the testator’s surviving family members.

Make Sure Your Will Is Valid

Massingill Attorneys and Counselors at Law offers complete estate planning services on a no-nonsense flat-fee pricing system to clients in Cedar Park and Greater Austin areas. Let us take care of the hard parts of estate planning, so you can focus on what’s important.

Contact us today online or at 512-410-0343 to book a free consultation by video, phone, or in-person.

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