Is my loved-one’s will valid? Is one of the most important questions we hear from people. As with all legal questions, the answer is…. IT DEPENDS! Moreover, the validity of a Will depends on the TYPE of Will the Testator made, but before we go into this, here are the main requirements for wills in general to be valid.
Legal & Testamentary Capacity & Testamentary Intent of Testator
Texas law states for a Will to be valid, the following general requirements are needed (regards to the Testator):
- the testator/testatrix (person making the Will) to have legal capacity (be at least 18 years old, are or have been lawfully married, or be a member of the US armed forces);
- the person needs to have testamentary capacity (be sound of mind), this means:
- You need to know what you own
- understand that the document you creating is a will
- understand that the will’s functions as an instruction on how property is distributed after your death
- have testamentary intent (the desire and intend to make a Will).
Formalities (with regards to the document)
Texas currently accepts 2 main types of Wills, all of them are in writing. It used to be 3, but nuncapative wills (oral wills) can no longer be created since September 1, 2007. The legal formalities must be followed for the will to be valid, in addition to that, the law has different requirements for the different types of wills they accept in Texas.
Written Wills: these are NOT completely in the Testator’s handwriting, and require:
- attestation by two or more credible witnesses above the age of 14.
- The witnesses must be present during the signing of the will of the Testator, and;
- must sign the will as well.
Holographic written wills:
- these are completely in the Testator’s handwriting.
- There is no witness requirement, and;
- the testator may attached a Self-Proving affidavit stating that the document indeed is his Last Will and Testament.
Oral Wills made before September 1, 2007:
- These require that the testator made the will during his last sickness at the place of residence or a place where he/she has resided for more than 10 days before his/her death.
- The assets need to be more than $30 in value, and;
- three independent and credible witnesses are needed to prove the testators testimony.
- NOTE: Texas no longer allows creation of Oral Wills!
Texas law give the testator some additional options to add to the Will, to ensure a smoother probate process (because, yes! Probate is necessary with a Will). One of these documents is a self-proving affidavit, that needs to be signed by the testator, witness and notary. The purpose of this document is that during probate, the witnesses do not have to attend the hearing during which the validity of the will is going to be determined. This not only saves you time and money, it will also save you the trouble of dealing with witnesses who are sick, moved or simply died before the Testator.
The consequences under Texas law for not meeting all the Legal & Testamentary Capacity & Testamentary Intent of Testator and Formalities (with regards to the document) are severe: The Will shall be declared invalid, and as a result you will be leaving your estate open to Intestacy, a statutory and mandatory distribution (which you most likely won’t like) according to Texas Probate Laws.
It is therefore strongly recommended that you work with an attorney who can help you ensure your Will (and estate plan) will meet all legal requirements, so that your wishes and not a default code will determine what happens to your estate. If you have more questions, or would like to start your plan, we would love to talk to you! You can book an appointment here, or contact our office.