If you read our last post, you saw some of the advantages to making a will in Texas. Perhaps you decided that you need a will. But how do you actually make a will? Does it need to be notarized? What are the next steps? Almost certainly—and we cannot stress this enough—your next step is to call an estate planning lawyer. Too often, we see wholly defective wills that cannot be admitted to probate. When a will is partially defective, the result can be even worse, as your intended beneficiaries may be stuck with a will that distributes your estate in an entirely different manner than you intended. This post covers the basic legal requirements for making a will in Texas.
Texas Wills Are Not Valid Until a Texas Court Admits the Will to Probate
Texas wills have zero legal effect until a Texas judge approves the will by written order. Even if the person making the will (called the testator) follows all necessary steps and creates a perfect will, the will is not valid until a judge admits the will to probate by entering a formal order. This process always requires a formal court proceeding, usually followed by a formal hearing. Even if you file a perfectly written will with the court clerk, the will still isn’t valid until the judge signs the order. Before signing the order, the judge will require you to provide certain testimony and other proof. The type and amount of proof varies according to the circumstances, for example:
- whether the will is formal or handwritten;
- whether the will is an original or a copy; and
- whether the will has a self-proving clause.
A Texas probate lawyer can provide additional information and details about the requirements you must meet to probate a will. Our Dallas, Texas probate attorneys regularly assist clients with fulfilling these requirements and obtaining the court orders that validate wills.
Formal Texas Wills Must Properly Witnessed and Signed
All Texas wills must be validly executed. Texas law recognizes two categories of wills: formal typewritten wills and informal handwritten wills. Most Texas wills are formal typewritten wills. These wills have several strict execution requirements. The testator must sign the will in the conscious presence of two witnesses (called subscribing witnesses or attesting witnesses), who must also sign the will themselves. In other words, the two witnesses must be in the same room as the testator when the testator signs the will. Further, the subscribing witnesses cannot inherit anything from the will.
Texas wills are often notarized. This is highly recommended, because it allows the testator to make a self-proving will if the will contains the appropriate written clause. Importantly, a self-proving clause doesn’t mean that the will is automatically valid. Rather, it helps move the will through the probate court by easing several procedures that the court would otherwise require.
Informal Holographic Wills Are Permitted in Texas but May Face Additional Challenges
Texas also recognizes informal holographic wills. This second category of will has its own requirements. Unlike a formal typewritten will, the holographic will must be entirely handwritten by the testator. Also, it must be signed by the testator. There is no requirement, however, that a holographic will is witnessed by anyone. Holographic wills are typically challenged more often in court than formal wills, and probate judges may scrutinize a holographic will more critically than a formal typewritten will. Due to the lack of a requirement for witnesses, holographic wills can be more susceptible to forgery challenges.
Holographic wills may face additional challenges. All valid wills must fulfill the most basic function—instructions for the distribution of the testator’s property upon the testator’s death. Sometimes a document believed to be a holographic will doesn’t fulfill this basic function. For example, a handwritten document may state instructions like, “as my health declines, I make a final wish to distribute property my property 75% to my daughter and 25% to my son.” Somewhat surprisingly, this document may fail as a holographic will due to a lack of clear testamentary intent, which is also called donative intent. In other words, the handwritten words fail to differentiate whether the writer intends his or her property to be distributed at death or sometime before death.
If you are thinking about engaging in estate planning, we highly recommend that you make a formal will rather than a holographic will.
Testators Must Have Testamentary Capacity and Avoid Undue Influence
All Texas wills must be made and executed with testamentary capacity and free from undue influence. A person who lacks mental capacity to make a will cannot make a valid will. There are several reasons a testator may have diminished capacity, including Alzheimer’s or other dementias, strokes, and the effect of alcohol, legal medications, or recreational drugs. In addition, the testator must make and execute his or her will free from undue influence. In essence, that means another person cannot exert influence that causes the testator to make a will. Please see our prior series on Understanding Inheritance Disputes in Dallas and Other Texas Areas for more information on testamentary capacity and undue influence.
If you have any doubts as to the validity of a will, please contact our probate attorneys today. Timing is particularly important when disputing validity in a Texas probate court, so it’s paramount that you take action as soon as possible.
In our next post, we will discuss some of the options and advantages available to Texans who are considering making a will.
Our Dallas, Texas team of probate lawyers can help you make a valid will, prove the valid will in court, or defend challenges to the will’s validity. We regularly assist clients in Dallas, Fort Worth, Plano, Denton, and throughout Texas. Please contact us as soon as possible if you need legal assistance concerning the validity of a will.