What are the Requirements of a Valid Will in Texas?
Texas has specific legal requirements for what makes a Will valid. A Will that does not meet all the requirements will not be enforceable.
In this post we’ll answer some common questions I get asked:
- What makes a Will valid in Texas?
- Does a Will have to be notarized?
- What is a self-proving affidavit?
- Can I write a Will without a lawyer?
What Makes a Will Valid in Texas?
To be valid in Texas, a Will must meet the following requirements:
1. The person making the Will (the “testator”) must have legal capacity, which means that they be at least 18 years old, lawfully, or a member of the armed forces of the United States.
2. The testator must be 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.
3. The testator must intend to create a writing that outlines how his property he wants his property distributed after he dies.
You have testamentary intent if at the time you sign your Will, you intend to make a writing that details who will receive your property after you die.
4. The Will must be in writing.
The formalities required for a written will depend on what type of Will you have made. Texas recognizes two types of 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.
Does a Will Have to be Notarized to be Valid in Texas?
No. A Will that meets the requirements listed above is valid in the state of Texas, even if it is not notarized.
However, most Wills attorneys prepare include self-proving affidavits to the Will. 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 is presumptive evidence that the testator signed the Will in accordance with state law.
What is a Self-Proving Affidavit?
Including a self-proving affidavit is not a requirement of a valid Will in Texas. However, having one makes streamlines the probate process.
Without a self-proving affidavit, it would be necessary to bring in witnesses to court to Texas statutes give testimony that the signature on the Will is genuine and they witnessed the testator sign the document. This can be problematic if witnesses have died or cannot be located.
The benefit of a self-proving affidavit is that it substitutes for in-court testimony of witnesses during probate. This saves considerable time and expense.
What Happens if Will Does Not Valid?
A Will allows you to identify your beneficiaries, and nominate a legal guardian for minor children. It also allows you to nominate an executor, who will manage your estate, pay your debts, expenses and taxes, and distribute your property as you specify. If you are creating trusts for beneficiaries after you die, you can appoint a Trustee and outline the terms of the trusts.
If a Will does not meet all the requirements of a valid Will in Texas, a court will not admit it to probate. As a result, a statutory formula, known as the intestacy statutes, will control who receives your property. Dying without a Will in Texas may result in your property passing in a manner you would not have preferred.
Do I Need a Lawyer to Make a Will in Texas?
Many people choose to write their Wills without the advice of an attorney using DIY software. While there is no legal requirement that you use a lawyer to make your Will, DIY estate planning is fraught with risk.
An attorney can help you navigate these legal requirements to ensure your Will carries out your wishes after you die.
This post was originally published on January 13, 2010 and updated on July 29, 2023.