A will is a key estate planning document that instructs the court on managing your affairs after death. Unfortunately, the will is completely useless if you do not meet all the legal requirements and properly execute the document. Additionally, common mistakes can cause major issues, such as increased costs, legal disputes, and even accidental disinheritance. This blog explains what makes a will valid in Texas and discusses what happens if you don’t meet Texas will requirements.
Covered in this Blog:
- What is a Will?
- Common Mistakes When Creating a Will in Texas?
- What are the Requirements for a Will in Texas?
- Do you have to Notarize a Will in Texas?
- What Happens if a Will Doesn’t Meet the Legal Requirements?
- We Can Help You Create a Valid Will in Texas.
What is a Will?
A will, short for Last Will and Testament, is a legal document that expresses what should happen to a person’s property when they die. It’s a set of instructions that goes into effect after death. With a valid will, you can do the following:
- Decide who gets your assets,
- Name a personal representative or executor to administer your estate, and
- Designate a guardian for any minor or disabled children.
A will only governs assets that a person owns in their individual name (also known as probate assets). Any assets with a beneficiary designation or co-owner aren’t subject to the will’s terms.
Common Mistakes When Creating a Will in Texas
If you are preparing a will, be aware of these common mistakes that can cause complications and unnecessary legal hurdles:
1. Not Naming an Independent Executor
- If you don’t use the term “independent executor,” Texas law defaults to a judge-supervised probate process, which is expensive and time-consuming.
- Always include independent executor language to avoid court interference and simplify the administration process.
2. Failing to Give the Executor the Power of Sale
- Without the power to sell assets, such as a house, an executors only option is to transfer the property to all heirs together, making the process much more tedious and contingent on everyone’s agreement.
- This can delay estate settlements and cause conflicts among beneficiaries.
3. Not Including a Residuary Clause
- Many people specify how to distribute specific assets such as the house and car but fail to account for everything else.
- Without a residuary clause, unassigned assets will not be captured by the will and will be distributed according to Texas intestacy laws, resulting in a distribution totally contrary to what you might have wanted.
4. Using Interested Witnesses
- A will must be signed by two disinterested witnesses, meaning they have no claim to anything in the will.
- If an interested party (someone who stands to inherit) serves as a witness, their inheritance is likely to be invalidated by the court.
What Are the Requirements for a Will in Texas?
Every state has statutory requirements for creating a valid, legally enforceable will. Texas will requirements are outlined in the Estates Code and can be broken down into four criteria: legal capacity, testamentary capacity, testamentary intent, and will formalities.
Legal Capacity
The person creating the will (the testator) must have the legal capacity to do so. Under Texas law, a person can make a will if they’re 18 years of age or older, married or have been married, or a member of the U.S. armed forces.
Testamentary Capacity
Testamentary capacity means the testator’s mental ability to create a will. It’s another way of saying a person is of “sound mind.” To meet this requirement, the testator must understand the following:
- The fact that they are making a will,
- What effect the document has,
- What property they own,
- Who their family members are, and
- How to make reasonable judgments about distributing property under the will.
With testamentary capacity, the testator just needs to have the requisite capacity at the time they sign the will. If the testator doesn’t remember making a will or who their family members are the very next day, the will is still valid—as long as they were competent when they executed the document.
Testamentary Intent
Testamentary intent is simply the intent to create a document that instructs how to dispose of the testator’s assets at death. Now you might be wondering how to show intent at the time of signing. A clear statement and date on the will are usually enough to establish intent.
Will Formalities
After establishing the testator’s legal and mental ability to make a will, there are some statutory formalities to satisfy. A will in Texas must be written, signed, and attested.
In writing
When the statute says “written,” it means printed. Texas does recognize handwritten (i.e., holographic) wills, but the requirements are a bit different, and holographic wills can be difficult to validate. Save your family the hassle of proving a handwritten will is valid by typing the document and signing before 2 disinterested witnesses.
Testator’s signature
The testator can either sign the document or have another person sign on their behalf. If someone is signing for the testator, the testator must be present and direct the signature. Any mark or symbol that’s meant to serve as a signature will suffice.
Witnesses
Two disinterested witnesses (at least 14 years old) must be present to attest and sign the will themselves in the testator’s presence.
Do You Have to Notarize a Will in Texas?
No. You don’t need to notarize a will in Texas for it to be valid. However, some testators include a self-proving affidavit, which does need to be notarized. This is a sworn statement signed in front of a notary by the testator and both witnesses, attesting that the testator signed the will. Including a self-proving affidavit helps prove the will’s validity and speeds up the probate process.
What Happens If a Will Doesn’t Meet the Legal Requirements?
If the document fails to meet the will requirements in Texas, it’s invalid. The probate court handling the estate then proceeds as though the decedent died without a will. When this happens, the entire estate is distributed according to Texas intestate succession law. Under this law, the decedent’s surviving family members inherit portions of the estate based on a statutory formula. The first person in line to inherit is the spouse, then children, then parents, then siblings, etc., until all the property is gone.
What happens when Texas intestacy laws are applied may not be what you have in mind. It’s entirely possible for a distant relative to inherit your estate if your will doesn’t meet the Texas valid will requirements. Give yourself and your family peace of mind by making and executing an enforceable will with the help of a knowledgeable estate planning attorney.
We Can Help You Create a Valid Will in Texas
If you want a will that’s enforceable and satisfies your goals, work with the estate planning lawyers at Robbins Estate Law. All of our attorneys graduated at the top of their class from one of the best schools in the country. Call us or contact us online to schedule a consultation to discuss your estate planning needs.
Kyle Robbins
Kyle Robbins is the founder and sole owner of The Law
Offices of Kyle Robbins. He received his J.D. with honors from the University of Texas School of Law and his B.S. in Food Chemistry and Microbiology from Oklahoma State University.
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