In Texas, a will is valid if the person making it has legal and testamentary capacity, intends the document to be a will, puts it in writing, and signs it with the formalities Texas law requires. Miss one of those requirements and a document meant to protect your family may never be admitted to probate.
This guide walks through each requirement, the questions people ask most often, such as whether a Texas will has to be notarized, and the mistakes I see most often when families bring me a will after a loved one has died.
The Short Answer
A typed or printed will is valid in Texas if:
- The person making it (the testator) is at least 18, married, or serving in the armed forces
- The testator is of sound mind when signing
- The testator intends the document to be his or her will
- The will is in writing and signed by the testator, or by someone else at the testator’s direction and in the testator’s presence
- At least two credible witnesses, age 14 or older, sign the will in the testator’s presence
Notarization is not required for validity, but a notarized self-proving affidavit makes probate much easier.
A will written entirely in the testator’s own handwriting and signed by the testator is also valid, even without witnesses.
What Is a Will?
A last will and testament names the people who will receive your property, nominates an executor to settle your estate, and allows parents to nominate guardians for minor children. It can also create trusts for beneficiaries and say how debts and taxes should be paid.
Texas law is strict about how a will is made. If a will does not meet the statutory requirements, it cannot be probated, and your property passes under the Texas intestacy statutes instead of your instructions.
1. Legal Capacity
Under Section 251.001 of the Texas Estates Code, the testator must be at least 18 years old, lawfully married, or a member of the armed forces of the United States, its auxiliaries, or the maritime service. A 17-year-old who is married or serving in the military can make a valid Texas will.
2. Testamentary Capacity (“Sound Mind”)
The testator must also be of sound mind when the will is signed. Texas courts say a person has testamentary capacity if, at that moment, he or she can understand:
- That he or she is making a will, and the effect of doing so
- The general nature and extent of his or her property
- Who his or her close family members and other natural beneficiaries are
- How these elements fit together into a plan for disposing of the property
This standard does not require perfect memory or good health. I am often asked whether it is too late for someone to sign a will. One daughter called me because her mother’s will was outdated and she had recently been diagnosed with early stages of dementia. A wife called because her husband, diagnosed with cancer the year before, was now in hospice.
In both situations a valid will may still be possible. What matters is the person’s mental state at the moment of signing. Someone with dementia or someone on strong pain medication may still sign a valid will during a “lucid interval,” when he or she is thinking clearly.
In these situations, the attorney should evaluate capacity carefully and document it, because a diagnosis or heavy medication makes a later challenge more likely.
3. Testamentary Intent
The testator must intend the document to operate as his or her will, that is, to dispose of property at death. Notes about what you might want, letters, or informal statements usually are not enough. Calling the document a will and stating how property should pass at death is the clearest way to show intent. The will must also be signed freely, without fraud, duress, or undue influence.
4. The Will Must Be in Writing
Texas no loger recognizes the validity of oral wills. A video of you explaining your wishes is not a will either, although it may be useful evidence of capacity. Texas recognizes two kinds of written wills, and the formalities depend on which kind you have.
5. Signature and Witnesses (Attested Wills)
An attested will is any will that is not entirely in the testator’s handwriting, which includes every typed will and every will an attorney prepares. Under Section 251.051 of the Texas Estates Code, an attested will must be:
- Signed by the testator, or by another person on the testator’s behalf, at the testator’s direction and in the testator’s presence
- Attested by at least two credible witnesses who are at least 14 years old and who sign the will in the testator’s presence
Who can be a witness?
Any credible person who is at least 14 can serve. Witnesses do not need to read the will or know what it says. They are confirming that the testator signed it and appeared to be acting voluntarily.
The safest choice is two adults who receive nothing under the will. A beneficiary who serves as one of the two required witnesses may lose part of his or her gift unless the will is also attested by two other disinterested witnesses. We explain this rule in can a beneficiary of my will serve as a witness?
A typed will signed only by the testator is not valid
A widow once came to me with a will she found in her late husband’s desk drawer. He had typed it, signed it, and put it away for safekeeping. Because no witnesses signed it, it was not a valid Texas will. The couple had no children, and his parents were living, so under the intestacy statutes she had to share ownership of the real estate he owned before the marriage with her estranged in-laws, exactly the result his will was meant to prevent.
Handwritten (Holographic) Wills
A holographic will is written wholly in the testator’s own handwriting and signed by the testator. Under Section 251.052, it does not need witnesses. A holographic will can be valid even if it is written on stationery or the back of an envelope, as long as the other requirements are met.
Holographic wills are legal, but they are easier to challenge and often unclear. Proving the handwriting may require testimony at probate. They are a reasonable emergency measure for a simple estate, not a substitute for a properly prepared plan. See holographic wills in Texas.
Does a Will Have to Be Notarized in Texas?
No. A will that meets the requirements above is valid in Texas even if it is not notarized. The reverse is also true, and this is where many people get into trouble: a notary does not replace the witnesses.
A woman called me for a second opinion after another lawyer told her that her mother’s will was invalid. Her mother had signed a carefully formatted typed will in front of a notary six months before she died, but no witnesses signed it. The lawyer was right. Because the will failed, the intestacy statutes controlled, and the children of a deceased child, the grandchildren her mother had specifically wanted to leave out, inherited part of the estate.
Notarization matters for a different reason: the self-proving affidavit.
What Is a Self-Proving Affidavit?
A self-proving affidavit is a sworn statement, attached to the will, that the testator and the witnesses sign before a notary. It does not make a will valid, and leaving it out does not invalidate a will. What it does is allow the will to be admitted to probate without live testimony from the witnesses, under Section 251.102 of the Estates Code.
Without it, the executor may need to find the witnesses years later and bring them to court, or prove their signatures some other way. That can be difficult when witnesses have moved or died. Almost every attorney-prepared Texas will includes a self-proving affidavit for that reason. Read more in self-proving affidavits in Texas.
Fill-in-the-Blank and Online Will Forms
Printed forms cause a particular problem.
Consider John, who wanted a will in place before a vacation. With an hour before his flight, he printed a form from the internet and filled in the blanks by hand: his car to his best friend, Joe, and everything else to his girlfriend, Brenda. He deliberately left out his parents, from whom he had been estranged for years. He signed the form, left it by the phone, and went to the airport. He died in a plane crash.
Only John signed the form, so it could not be an attested will. Could it be a holographic will? Texas courts will sometimes ignore printed words on a document that is otherwise in the testator’s handwriting, but only if the handwritten words make sense on their own.
Read without the printed text, John’s will said little more than “car, my best friend, Joe, my girlfriend, Brenda.” That is not enough to show how he wanted his property distributed.
Because John was single with no children and died without a valid will, his parents, the people he wanted to disinherit, would inherit his estate. A short will written entirely in his own handwriting would have worked better than the form. A properly signed will would have been better still. See the risks of DIY estate planning.
Common Mistakes That Invalidate a Texas Will
- No witnesses on a typed will, or only one witness
- Relying on a notary instead of witnesses
- Witnesses who sign later, outside the testator’s presence
- Fill-in-the-blank forms signed without witnesses
- Handwritten changes on a typed will after it was signed. Depending on the circumstances, they may be ignored, or they may create a dispute about what the testator intended. See can I make handwritten modifications to my typewritten will?
- Signing when capacity is doubtful without any record of the testator’s condition
How to Sign a Will Correctly in Texas
For an attorney-prepared will, the signing usually looks like this:
- The testator, two adult witnesses who are not beneficiaries, and a notary are present in the same room.
- The testator confirms that the document is his or her will and signs it.
- Both witnesses sign while the testator is present.
- The testator and witnesses sign the self-proving affidavit, and the notary completes it.
- The original is stored somewhere safe where the executor can find it.
Texas law requires the witnesses to sign in the testator’s presence. Temporary emergency measures adopted during the pandemic did not change that requirement for wills.
What Happens If a Will Is Not Valid?
If a will does not meet the Texas requirements, it cannot be admitted to probate. If there is no earlier valid will, the estate passes under the intestacy statutes, a fixed formula based on family relationships. As the stories above show, that formula often benefits exactly the people the testator meant to leave out, and it gives nothing to friends, partners, or charities. An invalid will also cannot nominate an executor or a guardian for minor children.
Frequently Asked Questions
Does a Texas will need to be dated?
A date is not one of the statutory requirements, so an undated will can still be valid. A date is still important in practice, because it shows which of several wills is the most recent. See is a will valid if it is not dated?
Does a will have to be filed or recorded while I am alive?
No. A Texas will is not filed with any court or agency during the testator’s life. After death, it is filed with the probate court as part of the application to probate it, generally within four years of the death.
Can a family member witness my will?
A relative who is at least 14 can legally witness, but using relatives who inherit under the will creates the beneficiary-witness problem described above and invites challenges. Disinterested adult witnesses are the better choice.
Is a will signed in another state valid in Texas?
Generally, yes, if it was valid where it was signed. A move to Texas is still a good time for a review, because Texas community property rules and probate procedures may affect how the will works. See is an out-of-state will valid in Texas?
Do I need a lawyer to make a will in Texas?
No law requires one. But every story in this article involves a person who believed his or her will was valid. An attorney’s job is not only to prepare the document, but to make sure it says what you intend and is signed correctly, so that it works when your family needs it.
Get Help With Your Texas Will
I have been licensed in Texas since 1994. I prepare wills for a flat fee quoted in advance and give every client clear signing instructions, so the will meets every requirement on the day it is signed.
Schedule a free introductory conference to create a new will or review an existing one.
