What are the Requirements of a Valid Will in Texas?

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.

Comments

  1. Bruce Yamini says:

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

    Thanks and blessings, Bruce Yamini

    • 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 Will complies with Texas statutes and takes advantage of special laws that simplify the probate process.

  2. 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?

    • 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.

  3. 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?

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

  5. T. Keith says:

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

    • 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.

  6. 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?

    • 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.

  7. Michael Uribe says:

    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?

  8. 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?

  9. 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.

  10. 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?

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

    Marilyn

  12. Jack Lesley says:

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

    • 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.
  13. Bobby Thomas says:

    Does a notarized will need two witness also?

  14. 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?

    • 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.

  15. 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.

    • 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.

  16. 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?

  17. 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

  18. Our main home is in Iowa, but we own a winter home in Texas. Does Texas recognize our Iowa will to leave our Texas property to family as it does in Iowa? Do we have to have a will in Texas also?
    Thanks

  19. 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.

  20. My grandmothers son died and didn’t leave a will. He didn’t have kids or a wife. He had 1 house. What actions does my grandmother have to take to sell his house?

  21. Does Texas law recognize video will?

  22. Does Texas law require the executor of a will to live in Texas? I would rather my final affairs be handled by a relative in another state.

    Thank you.

  23. My dad has terminal cancer and has requested that I transfer ownership of his houses (he has two) to myself (his oldest) and my sister. He wants me to contact the county tax office to get this done. I would think that an amended will stating his specific wishes would accomplish the same thing? Am I wring?

  24. Lorrilisa Estrello says:

    Can a written will be changed later by the issuer in the form of a verbal will if it is recited in front of witnesses or does the written will reserve the final say?

  25. When a person is deceased and has left a holographic or a attested will, do you take the will to your local county clerk office to be probated?

  26. Robin Rio says:

    I have a will but I would like to make an ammendment to it. Can I write out the changes I want and attach it to the will. Will that be valid?

  27. Cassandra says:

    My mother has done a will had it notorized in the presence of 2 witnesses. Does she need to also file it with an attorney to be valid?

    • The Texas Estates Code provides a procedure for those wanting to deposit a will with the clerk of the court for safekeeping. The cost of depositing a will with the clerk of the court is $5. Depositing the will is not mandatory, and has no legal significance. A will deposited with the court will not be treated any differently for purposes of probate than one that has not.

  28. My mother in law signed a will while in the hospital , leaving her house and car to her caregiver and caregiver filed it with courthouse. She was tricked into doing so. If she signs a new one, does that make the other null and void?

  29. My mother recently passed away. She made a will but left off a signature. However she also did a self proving affidavit with two witnesses and a notary and all of them signed that. Is that enough to make the will valid?

    • Section 251.105 of the Texas Estates Code provides that a signature on a self-proving affidavit is considered a signature to the Will if necessary to prove that the Will was signed by the testator or witnesses or both, except that, in that case, the Will may not be considered a self-proved Will.

  30. Saima Hassan says:

    What makes the holographic will valid if there are no witnesses nor notiry?

  31. James Lee says:

    Can I assign my son (a beneficiary) as an executor of the Will? Thanks,

  32. Is it possible for me to sign as one of the witnesses to my husband’s Will as long as it is in front of a notary? Or will it still be voided simply because I have the most to gain?

    My husband and I don’t know anyone around our area that can sign as uninterested witnesses, so me and my mother would be signing.

  33. Valerie Ashton says:

    Once you create a will, where to you file it (in Texas)? Who keeps it? How does your family know where to go to get it? Ideally, I would like to create a will and funeral preferences, file it with an entity and then give that entity’s contact information to a relative in the event of my passing. Not have the information available for family to review and debate while I’m alive. Thanks!

  34. Dave Nadolny says:

    Our current will was prepared in Collin County Tx, we have since moved to Van Zandt County TX. May I assume the change in residence from Collin County to Van Zandt will NOT affect it’s being valid?

  35. I’m married with two kids. Can I leave a will to my kids with my half of my property?

  36. Susan Mills says:

    My 80 year old father has a Will and it is filed with the court in the county where he lives. He plans to remarry next month. Does that make his will null?

    Thank you very much.

  37. My dad passed away and left a will. He has a widow, does she have rights to 1/3 of the estate? He left his property and insurance to his children

    • When someone dies leaving a Will, his probate estate will be distributed according the terms of the Will. Non probate assets, such as insurance policies, are controlled by a beneficiary designation, rather than the Will. So for example, suppose that an individual’s Will specifies that 1/3 of his estate would pass to his Wife, but the insurance policy lists only his children as the beneficiaries. In that situation, 1/3 of the probate estate would pass to the Wife, but the full proceeds of the insurance policy would pass only to his children.

      Surviving spouses do have certain rights, however, which you can read about in the following article: Can I Disinherit my Spouse in Texas?

  38. Is it legal for me to leave my property to my live-in boyfriend of 8 years in my will? Do I have to leave any property to my adult children or can I leave everything to my boyfriend? Thank you.

  39. Winnie Meeker says:

    My husband and I each has a will prepared by the military legal services when stationed in CA in 2005. It includes a notarized self-proving affidavit with 2 witness signatures, an Advance Health Care Directive, and a Durable POA. All documents have the following preamble:

    “The is a military testamentary instrument prepared pursuant to Title 10 United States Code, Section 1044d. Federal law exempts this document from any requirement for form, formality or recording that is prescribed for testamentary instruments under the laws of a state, the District of Columbia, or a territory, commonwealth or possession of the United States. Federal law specifies that this document shall be given the same legal effect as a testamentary instrument prepared and executed in accordance with the laws of the jurisdiction in which it is presented for probate. It shall remain valid unless and until the Testatrix revokes it.”

    We are Texas residents now and plan to stay. We do not want to change any provision of our wills at this time. Are our wills as effective as Texas wills?

  40. I lived in Iowa where my wife and I made out our will. We since moved to Texas . Will it valid in Texas ??

  41. Amy Clark says:

    I am single. I have a daughter that is 21 years old. I am leaving everything to her in my self-proving affidavit. I have no debt. My house and property are paid in full. I have a checking account, savings account and IRA with daughter as beneficiary.

    Does the will have to be probated? Do I have to have an executor?

    • When ownership of the decedent’s property, such as a home, is evidenced by title, that property cannot be sold or transferred until the decedent’s name is removed from the title. Probate records become a link in the chain of title, demonstrating that the decedent’s property has passed to someone else.

  42. Pat Burgher says:

    Does a will need to be registered with the state or any other governmental agency?

  43. My aunt created a will several years ago and a close friend kept the original and refuses to give it back. My aunt would like to make changes to her will, what would she need to do?

  44. My husband does not want to write a will but i do. If i write a valid will signed by two people can i leave my life insurance policies to my children.

    • Insurance policies typically pass by beneficiary designations, so it’s important that you coordinate any beneficiary designations with your Will. For example, if a beneficiary designation lists a spouse as the beneficiary but a Will specifies that all assets should pass to children, the beneficiary designation controls.

  45. Hi. My husband and I do not have any children, but we have a nephew who we have raised since birth. He is 7 years old. Can we leave him all are belongings but make someone else executor of your estate until he is 18?

    • You can accomplish your wishes by establishing a testamentary trust for your nephew and appointing a trustee to manage those assets until whatever age you determine would be appropriate to give your nephew full control over assets you leave him.

  46. Lana Rosenthal says:

    Do I have to have a notary with a handwritten, 2 witness Will for it to be valid? Thank you!

  47. Hi Rania. Several people have told me “You don’t need a will in Texas because Everything goes to your spouse if you’re married.” Then a friend told me that is wrong information. The friend told me: If you don’t have a will in Texas that all properties go to following: 50% to your living spouse and 50% to your children (NOT including step-children), but only your biological children and/or adopted children. Which one is correct? Thank you for your help 🙂

  48. If we die and still own a home and personal property, would our Will have to be probated to pass that property to our children? If we sell our home and move to apartment and only have cash and home items, would our Will need to be probated?

  49. I would like to include my two step children in my will as equal heirs with my children–can I do this?

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