What are the Requirements of a Valid Will in Texas?
A Last Will and Testament is a legal document that allows you to identify your beneficiaries, nominate a legal guardian for any minor children, dictate how your property will be distributed after you die. It also allows you to nominate an executor, who will manage your estate, pay your debts, expenses and taxes, and distribute your estate according to your wishes.
Every state has statutory requirements dictating what makes a Will valid. Texas is no different.
For a Will to be valid in Texas, the person making the Will (the testator) must have legal capacity, testamentary capacity, and testamentary intent. Additionally, the testator must follow specific formalities.
One of the requirements of a valid Will in Texas is that the testator has legal capacity. You have legal capacity to make a Will in Texas if you:
- are 18 years of age or older,
- have been lawfully married, or
- are a member of the armed forces of the United States.
You have testamentary capacity if you are of “sound mind.”
Texas courts have ruled that you have testamentary capacity to make a valid Will in Texas if you have the mental ability to understand:
- the fact that you are making a Will;
- the effect of making a Will;
- the nature and extent of your property;
- the persons who are the natural objects of your bounty (e.g. your relatives);
- the fact that you are disposing your assets;
- how all these elements relate so as to form an orderly plan for the disposition of your property
You have testamentary intent if at the time you sign your Will, you intend to make a writing that dictates how your property will be distributed after you die.
In addition to having legal capacity, testamentary capacity, and testamentary intent, you need to follow specific legal formalities for a Will to be valid. The formalities that need to be followed depend on what type of Will you have made.
Texas recognizes two types of written Wills.
- A holographic Will is a handwritten Will. To be valid, you must write the Will completely in your own handwriting and sign it. There is no requirement that witnesses or a notary sign the document.
- An attested Will is a Will that is not completely in the handwriting of the testator. This is commonly a typewritten Will, like one an attorney would prepare for you. To be valid, you must sign the Will, or direct another person to sign it in your presence, and at least two credible witnesses over the age of 14 must sign it in your presence.
Is a Will Valid if it is not Notarized?
A Will that meets the requirements listed above is valid even if it is not notarized
However, the Texas statutes give the testator the option of adding a self-proving affidavit to the Will. The testator, witnesses, and a notary all have to sign a self-proving affidavit.
A self-proving affidavit is a sworn statement that witnesses and the person making a Will (the testator) sign in front of a notary public. It constitutes presumptive evidence that the testator signed the Will in accordance with state laws.
The benefit of a self-proving affidavit is that it substitutes for in-court testimony of witnesses during probate, which saves considerable time and expense.
If a Will does not meet all the legal requirements, a court will declare it invalid. As a result, your estate would be being distributed according to a statutory formula (the Texas intestacy statutes) rather than the way you would have preferred.
An attorney can help you navigate these legal requirements to ensure that your Will will carry out your wishes after you die.
This post was originally published on January 13, 2010 and updated on January 7, 2022.