Does a Typewritten Will in Texas Need Witnesses If It is Notarized?
To be valid, a typewritten Will must be signed in the presence of two witnesses, even if they it notarized. Unfortunately, her mother didn’t know that.
Her mother had signed a typewritten Will six months before she died. The Will had the correct formatting and included all the appropriate sections. It clearly identified all her mother’s property and directed the executor to distribute the property to her mother’s living children. Her mother thought she had covered her bases.
After her mother died, she contacted a lawyer to assist with probate. The lawyer reviewed the Will, and told her it was not valid. Although her mother signed the Will in front of a notary, no witnesses had signed the Will. As a result, it did not meet the requirements of a valid Will in Texas.
This surprised her. Why was the notary’s official signature not sufficient to make the Will valid? She contacted me for a second opinion on whether typewritten wills required witnesses in addition to notarization.
What Makes a Typewritten Will Valid in Texas?
To be valid, the Texas Estates Code requires the person making the typewritten Will (the “testator”) must sign the Will in the presence of at least two credible witnesses over the age of 14.
If a testator signs a typewritten Will in front of a notary, but two credible witnesses over the age of 14 do not sign in in the testator’s presence, it will not be valid.
A testator has the option of adding a self-proving affidavit to the Will. The testator and two witnesses sign the self-proving affidavit before the notary public, who also signs. The benefit of a self-proving affidavit is that it substitutes for in-court testimony of witnesses about the validity of the Will. This saves considerable time and expense.
The absence of a self-proving affidavit will not invalidate the Will. The absence of witnesses will.
DIY Planning Is Fraught With Risk
Her mother’s primary objective in writing her Will was ensuring that the children of a deceased child, with whom she had no contact, did not inherit any portion of her estate.
When she signed her Will in front of a notary, she likely thought she had covered her bases. Unfortunately, because she did not know what she didn’t know, the Will is not valid. As a result, the Texas intestacy statutes will control, which means that her estranged grandchildren will inherit part of her estate.
The situation above illustrates the benefits of having a lawyer legal advice. A lawyer would have explained the requirements of a valid Will, ensured that the Will was in the correct form, and made sure she signed the Will properly.
Yes, it costs more to consult an attorney. But the costs and consequences of an invalid Will can be significant.
Isn’t the extra cost worth your peace of mind?
This article was originally published on July 17, 2013, and updated on August 8, 2023.