Texas Will Requirements

Most people don’t want to think about their death, let alone plan for it, but it’s something that needs to be done. Providing your family members and loved ones with some guidance can be one of the most important things you do. Creating your last will and testament (will) is a step you can take today to care for your family in the future.

Estate planning is for everyone. Your estate plan is simply the collection of legal documents that express your final wishes. A will is one of the tools you can use to direct who your estate (the personal property and real property you own at your death) passes to. Your estate plan can include nominating a guardian for your minor children. This can apply both temporarily, while you’re incapacitated and unable to care for them, or permanently if you pass away while they are minors. Incapacity planning can also include a durable power of attorney to appoint a trusted person to manage your financial matters or healthcare decisions, as well as a living will to provide specific guidance on your end-of-life healthcare decisions.

Without an estate plan in place, you leave critical decisions in the hands of the probate court. While it will attempt to meet your best interests, the probate court must consider “one-size-fits-all” state law, which may not match your intentions.

Making sure your estate is distributed the way you want is worth the effort to prepare. This article focuses on the legal requirements for a valid will, ways to create a will, what happens if you die without a valid will, and how the probate process works in the state of Texas.

Texas Will Requirements

The Texas Estates Code sets the requirements and procedures for Texas wills, estates, and guardianship. The general requirements for a valid will address:

• Capacity
• In writing
• Signature
• Attestation

A will that fails to meet these requirements may be declared invalid by the court. If this happens, your estate will pass by the state’s intestate succession laws. Let’s take a look at each of these required elements.

You Must Have the Capacity To Make a Will

Texas’s law requires the “testator” (the person making the will) to have the legal capacity to make a will. In general, this means you must be at least 18 years old and of sound mind. Texas law allows exceptions to the age requirement if you are married, were married, or if you’re in the armed forces.

The Texas Estates Code doesn’t define “sound mind.” Case law makes it clear that it means you understand what you own, who your family is, and how your will distributes your property at the time you sign it.

Your Will Must Be in Writing

Although Texas once recognized nuncupative (oral) wills, the law now requires your will to be in writing. The state does recognize handwritten wills, also known as holographic wills. A holographic will has different witness requirements and may be subject to greater scrutiny by the probate court.

You Must Sign Your Will

In most cases, a will must be signed by the testator to be valid. If you are unable to sign your will, you can direct another person to sign it on your behalf in your presence.

The Will Must Be Witnessed

A formally prepared will must be witnessed. Texas requires two credible witnesses to attest to your signing of the will. The witnesses must be at least 14 years old and sign their names to the will in their own handwriting in your presence. The law doesn’t require a will to be notarized unless you use a self-proving affidavit. Wills with a self-proving affidavit may be admitted to court without the need for witness testimony, making the probate process more efficient.

A fully handwritten will does not need to be witnessed to be valid. Texas law requires testimony from two witnesses that the will is in the testator’s handwriting.

How To Create Your Will in Texas

If you’re ready to create your Texas will, there are several ways to do so. No matter which option you choose, following the detailed instructions is essential.

State-Provided Forms

Although the Texas Estates Code does not include a statutory will, the government provides several will forms that address various family circumstances. Some of the forms are available in Spanish. There is no cost to use these forms.

Self-Help Tools

A low-cost way to make a will is through online do-it-yourself services. These services offer some flexibility in creating a state-specific will that meets your needs.

Texas Estate Planning Attorney

For a full-service experience, consult with a Texas estate planning attorney. You may want to consider getting legal advice from a lawyer if you have significant assets, a blended family, a child with special needs, or any other circumstances you want to be sure your estate plan covers. Working with an estate planning professional can also provide peace of mind, knowing an expert is ensuring everything is handled correctly.

What Happens if You Die Without a Valid Will

If you die without a valid will in Texas, the probate court handles your estate. Your estate will be distributed under the state’s intestate succession laws. The probate process for an intestate estate includes:

• Appointing the personal representative (administrator)
• Determining who the legal heirs are through a formal heirship proceeding
• Identifying, collecting, and managing the assets
• Paying the debts
• Distributing any remaining assets in the order set out in the intestacy laws

The Texas intestacy laws are found in the Estates Code Sections. In general, these laws divide your estate between your surviving spouse and your relatives. If you don’t have a surviving spouse, it will be divided among your relatives. This may include family members you didn’t get along with and distant relatives you never met. If no heirs are found, your estate “escheats” (goes) to the state.

The Texas Probate Process

The probate process for a will is similar to the intestate process. With your will, you’ve named the personal representative, known as the executor, who will administer your estate. The executor gathers and manages your assets, notifies your designated heirs, pays the estate’s debts, and distributes the remainder of your estate to your heirs. Once it finds the will valid, the probate court admits the will to probate and oversees the process in accordance with the testator’s intent, with minimal or full court supervision.

Potential Ways to Avoid Probate

With or without a will, probate is a public process. For various reasons, some people want to avoid this. You can potentially pass along some or even all of your assets at your death and avoid the public nature of the probate process. Some key tools for this include revocable living trusts, ownership and beneficiary designations, and statutory small-estate shortcuts. Let’s take a closer look and see if any are a good fit for your situation.

Trust-Based Estate Plan

A revocable living trust (RLT) is a common strategy for avoiding probate. The settlor (the person who creates the trust) transfers assets into the trust and serves as the trustee until their death. The named successor trustee takes over the trust administration and distribution upon the settlor’s death. An RLT may avoid probate entirely, which can be quicker, less expensive, and more private than probate.

Ownership and Beneficiary Designations

Real estate held with right of survivorship automatically passes to the other owner or owners at your death, bypassing probate. Transfer-on-death (TOD) or payable-on-death (POD) designations are legal mechanisms that transfer assets to your named beneficiary without going through probate.

Statutory Short Cuts

If statutory requirements are met, the Texas Estates Code provides for streamlined probate processes for certain estates. These probate “shortcuts” transfer real property or personal assets without full probate, but have detailed requirements:

• Affidavit of Heirship: for real property passing by intestate succession with no disputes
• Small Estate Affidavit: for personal property under $75,000, provided there is no will
• Independent Administration: for real property or personal property; testator directs in the will that the executor act with minimal court oversight
• Muniment of Title: for real property passing under a will with no debts outside of mortgages

These solutions can be complicated. There’s no shame in speaking with an estate planning attorney if you fear you might be getting in over your head.

Having an estate plan is about more than just passing on your assets to your family members and loved ones. You can nominate a guardian to take care of your minor children, make provisions for your pets, leave assets to a favorite charity, and more. Your estate plan can be customized to meet your specific needs.

Consult a Texas Estate Planning Lawyer for Legal Advice

Take care of the important people in your life by making an estate plan. If your assets and intentions are straightforward, you may be able to use self-help tools to create and execute your own will. For more complex family situations or assets, you may want to consult with an estate planning attorney. A Texas will lawyer can help you evaluate all your options and create a comprehensive estate plan so you can have the peace of mind that comes with knowing you’ve provided for your family members and loved ones.