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Jasper L. Edwards
At some point, we’re all going to get to thinking about what happens to not only us, but our family and the assets we own after we pass. You can get help with putting together your last will and testament Texas to take some measure of control over the process, but it’s important to know what the requirements of such a document are in the first place.
Your will is effectively there to safeguard your assets to make sure that your estate is used in the way that you prefer. If you don’t meet the requirements of a will in Texas, then it can end up leading to legal troubles and a contested will. Let’s go over some of the requirements here.
Important Terms
● Testator (the person making the will)
● Executor (the person named by the will who is responsible for distributing the estate and paying any bills or debts with the estate)
● Beneficiary (the person named in the will as receiving part of the estate)
What Makes a Will Valid in Texas?
Every state of the United States of America has their own statutory requirements that determine whether or not a will is valid and this is the case with Texas, as well. Primarily, these requirements tend to ensure that the wishes as written on the will are truly that of the testator.
Three of the primary assurances that a will needs to be valid are the legal capacity, the testamentary capacity, and the testamentary intent of the testator. We’ll break down what each of them means, next.
Legal Capacity of the Testator
A will cannot be made by a person who does not have the legal capacity to make one. There are three primary categories of people who have legal capacity to make a will in Texas. They are as follows:
● Those who are 18 years of age or older
● Those who have been lawfully married
● Those who are a member of the armed forces.
If you meet any of these three criteria, then you have the legal capacity to make a will in Texas. You do not need to meet them all, only one.
Testamentary Capacity of the Testator
What testamentary capacity means, effectively, is that you are of sound mind and fully capable of making decisions regarding your will, estate, and how it is handled.
Determining the testament capacity of the testator is up to the courts to decide, should it be contested. However, it is determined in Texas as the ability to comprehend the following:
● What a will is and what it affects
● That you are making a will for yourself
● The full extent and nature of your assets
● The people who are natural beneficiaries of your assets (your relatives)
● The awareness that you are giving your assets away
● How all of the above works in a plan to dispose of your property
Testamentary capacity can be contested not only if there are concerns that you are not of sound mind at the time of making a will. It can also apply to wills made without knowledge of certain things, such as natural beneficiaries or assets you might not know you have.
Testamentary Intent of the Testator
Testamentary intent ensures that your will is not simply a record of your wishes in how your estate will be handled. The intent is the valid signature that determines that this is, in fact, your will, and it is to be carried out as such. For instance, a letter that contains private thoughts of your final wishes does not have testamentary intent. You need to intend for it to be a will at the time of signing for it to have that intent.
The Formalities of Creating a Will
There are two types of valid wills in Texas, attested and holographic. The former is a written will made with the presence of a notary public and two or more witnesses. The latter is handwritten and signed solely by the person making the will. Each of these types of will has its own rules to ensure it is valid.
Formal Attested Will
The rules dictate that formally attested wills in Texas have to be in writing, signed by the testator or another person (on their behalf, at their wishes, in their presence), and attested by at least two credible witnesses, who each must be at least 14 years old and will sign their own names to the will in handwriting. Formal attested wills are typically made with the help of an attorney, with self-proving affidavits provided so that witnesses do not have to testify in court to vouch for the legitimacy of the will. It is important to know that no beneficiaries of the will should be present at the time of signing, as it can prevent them from receiving what is determined what is to go to them on the will.
Holographic Will
A holographic will in Texas is valid if it is written entirely (not partially) in the testator’s handwriting and dated by the testator. It cannot be typed, nor can any part of it be written by someone else. Holographic wills don’t need to be signed by anyone else.
Do You Need a Lawyer to have Your Will Notarized?
Having a lawyer present while preparing and signing the will is not necessary. You can write your own will, providing that it meets all the criteria above, but you may want to consult a lawyer, especially if you plan to disinherit someone who may traditionally be considered a beneficiary. You do not need to notarize your will to make it legal in Texas, either. However, if you don’t want witnesses to have to testify, notaries can make your will self-proving.
Ensuring the Validity of Your Will is Crucial
Make sure that your last will and testament for Texas is completed meeting all of the requirements. No-one wants there to be any contention or conflict over their passing and keeping things legally iron-clad helps prevent that.
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