What are the Requirements of a Valid Will in Texas?

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.

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.


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.


  1. My dad just passed away and he remarried. His wife has not communicated to us since his passing. My father told me in the hospital bed that I was in the will. I just want to find out if there is anything to split up or did she get him to sign over everything to him.

  2. My dad recently passed away and I was his caregiver and guardian. He redid his will after his previous caregiver coersed him into making a will including her but leaving out two of his children. His new will has been signed by him and notarized at his bank but does not have 2 witnesses. Is it invalid?

    • To be valid, an attested Will must be in writing, signed by 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. Holographic Wills do not need to be witnessed to be valid.

  3. Debbie Baker says:

    Hi. My dad passed away 3 years ago. The only Will my mom and dad had is very old and it basically left the belongings to the other when one passed and then split 50/50 between me and my brother when the other passed. If I passed, my 1/2 was to be split between my 2 kids and my brother was executor (they were under age at the time and now grown) There is just me and my brother and my mom does not have anything except a home and the contents. Should we get legal advice/help on a Will or is there a simple form she could fill out and sign with a notary? Thank you for your help

  4. I live in Texas. Can my mom be the beneficiary even if she is not a citizen?

  5. Must attested or holographic wills be recorded by the city or county clerks?

  6. My mother had a stroke in December…she turned 94 this month and has improved greatly. She is alert and speaking. She has property and we have been told she needs to get a will. I have also been told I can download one from the Internet. We live in Texas, can you tell me what is the correct form to use and the process. Do we still need an attorney?
    Thank you!

  7. Pablo Torres says:

    I am married for a second time, but I don’t want my second wife to inherit my house, which is my only asset. I want my kids to be the sole owners of my house.

    If just make a holographic Will, would that be enough for them to inherit my house?

    • Property owned before marriage is characterized as separate property and you can dispose of it as you wish; however, certain constitutional protections are available for surviving spouses in Texas. A surviving spouse is entitled to a life estate in the homestead and cannot be forced to sell the property as long as he or she occupies and uses it.

  8. My mother has a will & states everything goes to me & she leaves nothing to two other children. Can this be done or does she need to state she leaves them $1.00


    • There is no requirement that $1.00 be left to anyone. States have statutes that protect children who have been accidentally omitted from a Will. Please consult a lawyer to make sure the Will is drafted and executed properly so as to minimize the risk that a Will contest will be successful.

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