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Texas Last Will and Testament

Written by our Legal Team

A Last Will and Testament (also simply called a “will”) is a legal document. It states your wishes for your property and minor children (if any) for after you pass away. It’s also where you name a personal representative to be in charge of settling your affairs.

The legal requirements for making a will in Texas can be found in Texas Estates Code § 251.001. See below for the basics.

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Making a Will in Texas

Texas Will Requirements

To make a valid will in Texas, certain legal requirements must be met. There are requirements for both the person making the will (called a “testator”), and for the will itself.

Testator Requirements

Regarding testators, the law says:

a person of sound mind has the right and power to make a will if, at the time the will is made, the person:
(1) is 18 years of age or older;
(2) is or has been married; or
(3) is a member of the armed forces of the United States, an auxiliary of the armed forces of the United States, or the United States Maritime Service. Texas Estates Code § 251.001.

Sound mind generally means that you’re aware of your actions when creating the will. More specifically, it means that at the time the will is made, you understand that you’re creating a will, the nature of the property you own, and to whom you’re leaving your property. Even a person with dementia or Alzheimer’s may be deemed to have a sound mind, if lucid at the moment of signing. If a testator believes there might be any doubt as to his or her mental capacity at the time of the signing, a letter from a doctor affirming mental competence generally can be included with the will.

Will Requirements

Regarding the will itself, the standard requirements are set forth in Texas Estates Code § 251.051.

The law says:

a will must be:

(1) in writing;

(2) signed by:

(A) the testator in person; or

(B) another person on behalf of the testator:

(i) in the testator’s presence; and

(ii) under the testator’s direction; and

(3) attested by two or more credible witnesses who are at least 14 years of age and who subscribe their names to the will in their own handwriting in the testator’s presence.

Although there are various exceptions and special rules, these are the standard requirements for Texas wills.

In addition, Texas allows a will to be made without witnesses if it is written by hand by the testator and signed at the end. Texas Estates Code § 251.052. This is called a “holographic will”. Holographic wills offer some convenience, but they come with the risk of making mistakes that could leave a will invalid.

Does my will need to be notarized?

You should definitely have your will notarized. Under Texas law, a will that meets certain requirements — including proper notarization — is “self proved”. Texas Estates Code § 251.101. A self proved will can be admitted to probate court without the testimony of the witnesses to the will. (When a will that isn’t self proved is submitted to the probate court, the court will require testimony from witnesses, or other proof, to establish that the will is what it claims to be.)

How does it work? To make a will self-proved in Texas, the testator and witnesses must sign a “self proving affidavit” before a notary public. An affidavit is a sworn statement, and a notary public is an officer of the court. Therefore, an affidavit before a notary public is like making a statement in court. So, when an affidavit states that the will was properly executed, it’s as good as in-court testimony, and the witnesses don’t need to show up when it’s time for the will to be admitted to court. Texas Estates Code § 251.101.

By the time a will is submitted to a court, it can be difficult to find witnesses and bring them all to court — not to mention the legal costs. So you should definitely make your will self proved to help your loved ones avoid this hassle.

Do I need an attorney to make a will in Texas?

No. An attorney is not required to make a will in Texas. For the vast majority of people, an attorney will simply do the same things that a good will-making software does — ask you questions and then create documents for you based on your information and wishes. However, in certain situations it is a good idea seek legal advice from an attorney, like if you have a child with special needs, or if you have a high net worth (around $10 million) and are concerned about federal estate taxes. In these cases, an attorney can help you navigate special questions and create a proper plan.

What if I have an old will in place?

Texas law handles old wills in two ways. First, if you have an old will in place, you can cancel it by creating a new one. A good will usually contains a statement that it revokes (cancels) any prior wills. Second, a will can be cancelled simply by physically destroying it. Texas Estates Code § 253.002.

Do I need to file my will?

Under Texas law, a will is filed with the court after the death of the testator. Texas Estates Code § 256.003. So, after you pass away, your will should be filed in your local probate court by the person named to be your personal representative (also called an “executor” or “administrator”). This will begin the legal process known as “probate” through which your wishes are carried out under court supervision.

In the meantime, store your will in a safe place and make sure the right people know where to find it. Note: It is not a good idea to store a will in a safe deposit box, because accessing the safe deposit box can depend on getting court approval, and getting court approval can depend on what the will says!

Are there limitations on how I can leave my property?

You can generally leave your property however you want. However, married individuals should note: Texas is a “community property” state. This means that assets acquired during a marriage (or improved with funds earned during a marriage) belong to both spouses equally. Therefore, when one spouse dies, the other, surviving spouse still continues to own his or her half. The will of the deceased covers only the half of the property that was owned by the deceased. Most married individuals leave everything to their spouse anyway, so this usually doesn’t change people’s plans.

Other than that, you can leave your entire estate as you please. Some wills leave everything in a bundle, while others break out specific gifts for specific people. Some leave everything in equal shares, and others say that everything should be sold and the proceeds distributed in specific percentages.

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