What are the Requirements of a Valid Will in Texas?

by Rania Combs on January 13, 2010

will imageA 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.

Legal capacity

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

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

Testamentary intent

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.

Formalities

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.

  1. 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.
  2. A holographic Will is a 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 Statutes provide 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.

Return to Texas Wills and Trust Online home page →

{ 33 comments… read them below or add one }

Bruce Yamini September 28, 2011 at 9:59 pm

Does it invalidate a will if the decedent resided in Texas, but the will was executed in Oklahoma?

Thanks and blessings, Bruce Yamini

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Rania Combs September 29, 2011 at 11:42 am

Generally, Texas will recognize a valid will that was executed in compliance with the laws of another state. However, especially if you intend to reside in Texas, it would be prudent to consult with a Texas attorney to ensure that your complies with Texas statutes and takes advantage of special laws that simplify the probate process.

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gay January 19, 2012 at 1:56 pm

My father-in-law died leaving a will. It is a very short typed will stating his intent to leave his possessions to his two living sons. He signed the will, two unrelated people signed the will as witnesses, however…the will is not dated. Is this will valid in the state of Texas?

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Rania Combs January 19, 2012 at 2:55 pm

Thanks for your question.

In Texas, there is no requirement that a will is dated; however, it is standard practice is to include the date on the same page as the testator’s signature. Having the document dated can be important in a lot of circumstances, such as if the testator leave multiple wills and there is a question about which is the most recent will or if there is a question about whether the testator had testamentary capacity on the date he or she signed the will.

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Ann February 17, 2012 at 6:58 pm

If I write a Will, do I have to appoint someone to be my executor? Can my wishes just be carried out by my family?

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Rania Combs February 17, 2012 at 8:03 pm

You can name a family member to serve as your executor.

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Rohini February 25, 2012 at 1:15 am

Can I be one of the two witnesses to my spouse’s will if I am also a beneficiary of the will?

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Rania Combs February 25, 2012 at 8:18 am

Please refer to my article on who can witness a Texas will by following the link.

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T. Keith April 2, 2012 at 10:35 am

If a Texas will is not probated within the allotted 4 year time slot is the will invalid?

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Rania Combs April 4, 2012 at 8:21 am

After the four years has elapsed, the will can be probated only as a “muniment of title” if you can show that failing to probate the will was not due to the absence of reasonable diligence. A muniment of title transfers title to property according to the terms of the will. No executor or administrator will be appointed.

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Rae May 26, 2012 at 12:36 am

I have my will completed and signed by two witnesses before a notary public. Do I need to have this filed at my local courthouse or can I keep this in my possession?

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Rania Combs May 26, 2012 at 8:34 am

It is possible for you to deposit your will with the clerk of the court for safekeeping; however, depositing the will is not mandatory and has no legal significance.

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Michael Uribe July 27, 2012 at 10:08 pm

My father left a typed will signed by him and a notary and that is it. It states my brother as executor and the house left to me and my sister. It states that he is in right mind and all that. But just signed by him and a notary…Is this a Valid will for the house to belong to me and my sister? Also if it is not Who does the house go to?

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Rania Combs July 31, 2012 at 11:21 am

To be valid, it must be in writing, signed by the testator, or another person at his direction and in his presence, and attested in his presence by at least two credible witnesses over the age of 14. Just being notarized is insufficient. If a testator dies without a valid will, his property is distributed according to the intestate distribution scheme.

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Robert C September 1, 2012 at 2:31 am

Living in Texas and married. Can I construct a valid will that leaves property or money to someone other than my spouse? Example; can I leave a car to my son?

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Rania Combs January 2, 2013 at 5:07 pm

It is possible to make bequests of your separate property and your share of the community property to someone who is not your spouse.

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Rania Combs October 15, 2012 at 10:18 am

A valid holographic will must be written completely in the testator’s own handwriting, and signed by the testator. There is no requirement that it be signed by any witnesses or notarized for it to be valid.

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Ellen December 27, 2012 at 12:46 am

My Father lived and died in Texas, and his widow (not my mother) said that he left everything to her; and she will not give me a copy of his will. Do you have any suggestions how I can get a copy of the will?

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Marilyn January 1, 2013 at 11:33 pm

My husband and I are considing making a will. Do we each need to prepare a separate will?

Marilyn

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Rania Combs January 2, 2013 at 9:07 am

It is customary for each spouse to have a separate will.

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Jack Lesley January 3, 2013 at 2:51 pm

Must my will be probated in the county where I am residing when I die or can it be probated in another county.

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Rania Combs January 3, 2013 at 3:09 pm

According to Section 6 of the Texas Probate Code, a will should be admitted to probate in the Texas county where the decedent was domiciled or had a fixed place of residence.

If the decedent was not domiciled in Texas and had no fixed place of residence in this state, the proper venue depends on where he or she died:

  • For those who die in Texas, the will should be probated either in the county where his principal estate was at the time of his death or in the county where he died.
  • For those who die outside of Texas, the will should be probated in a Texas county where the decedent’s nearest relatives reside, or if no relatives reside in Texas, then in the county where the decedent’s principal estate was situated at the time or his or her death.

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Bobby Thomas February 6, 2013 at 5:52 pm

Does a notarized will need two witness also?

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Rania Combs February 8, 2013 at 9:39 am

Yes.

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Barbara March 19, 2013 at 7:41 pm

Do the wishes written in a Will have to be followed by the Executor? For instance, if a coin collection was bequeathed to a specific person, do they have to be given it by law once the Will is probated? Is there a time limit for when that property has to be turned over to that recipient?

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Rania Combs March 20, 2013 at 9:43 am

An executor must comply with the wishes of the testator. Sometimes a testator will put restrictions on the gift. For example, the Will may specify that if a bequest is made to a minor, then the property will be held by that minor’s guardian until he or she reaches a certain age. It’s always best to read through the Will to determine the testator’s wishes and to seek guidance from an attorney as to any provisions you do not understand.

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Jim May 14, 2013 at 3:14 pm

I guess I am a little confused by your site here on Wills. In order for it to be accepted in Texas, the Will has to be handwritten? Or am I misunderstanding the topic? If a will is typed up, initialed by the individual, signed and dated by such person, notarized, and signed by 2 uninterested people, is this method acceptable? Thanks.

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Rania Combs May 14, 2013 at 4:22 pm

The fact that the Will has to be written does not mean that it has to be handwritten. An attested will is typically typed, signed by the testator, or another person at his direction and in his presence, and attested in his presence by at least two credible witnesses over the age of 14. A holographic will must be written completely in the testator’s own handwriting, and signed by the testator. There is no requirement that a holographic will be signed by any witnesses.

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Sarah W December 3, 2013 at 11:32 am

If we have children and wish to leave their custody to a friend in the event of my husband and my death … is there anything that is required to put into our will?

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Rania Combs December 3, 2013 at 12:54 pm

All parents have the opportunity to appoint a guardian for their children in a Will or an Appointment of Guardian. If you have not named a guardian, a guardian will be selected based on certain statutory guidelines, which you can read about by clicking here.

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Ken April 11, 2014 at 7:50 pm

I was told by an officer at the local bank that a Texas will must be executed in the presence of an attorney to be legal. True or not? I thought 2 witnesses and a notary is appropriate. Your comment please.

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Rania Combs April 12, 2014 at 12:07 am

There is no statutory requirement that a Will be signed in the presence of an attorney.

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Rania Combs March 7, 2014 at 4:09 pm

Although your Will may still be valid, it should be updated as your life circumstances change. Otherwise, it will become an outdated document that doesn’t accomplish your goals and objectives

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