A last will and testament is a legal document that allows you to identify your beneficiaries, designate the way in which your property will be distributed, nominate a legal guardian for any minor children, and nominate an executor to manage your estate, pay your debts, expenses and taxes, and distribute your estate according to your wishes.
To make a valid will in Texas, you must have legal capacity, testamentary capacity, and testamentary intent. Additionally, certain formalities must be followed.
You have legal capacity to make a will in Texas if you are 18 years of age or older, are or have been lawfully married, or are a member of the armed forces of the United States.
Testamentary capacity refers to being of “sound mind”. You have testamentary capacity to make a will in Texas if you have the mental ability to understand:
- the business in which you are engaged;
- 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 last will and testament, you intend to make a revocable disposition of your property to take effect at your death.
In addition to legal capacity, testamentary capacity and testamentary intent, certain formalities need to be followed 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.
- An attested will is the most common type of Last Will and Testament. To be valid, it must be in writing, signed by you, or another person at your direction and in your presence, and attested in your presence by at least two credible witnesses over the age of 14.
- A holographic will that must be written completely in your own handwriting, and signed by you. There is no requirement that it be signed by any witnesses.
The Texas Probate Code provides the person making a will with the option of adding a self-proving affidavit to the will. A self-proving affidavit is signed by the person making the will and two witnesses before a notary public.
When a will is probated, the self-proving affidavit substitutes for in-court testimony of witnesses as to the validity of the will, which saves considerable time and expense.
If a will does not meet all the requirement set forth by the statutes, it will be declared invalid, meaning that your estate could be distributed according to a statutory formula rather than the way you would have preferred.
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