A last will and testament is a foundational component of any estate plan. While many people believe that a will simply details how assets will be distributed after their death, the document has many other purposes. It allows an individual to designate an estate executor, choose guardians for their children, and delegate the power of attorney to a trusted friend or relative. Since wills can have profound impacts, both in life and in death, it is important to understand which requirements a will must meet to be considered legal in Texas.
Texas, like most other states in the country, permits people who meet a certain, basic threshold to create a will. To demonstrate legal capacity, a person must meet at least one of the following criteria:
- Be at least 18 years of age
- Be a member of the United States military
- Be or have been lawfully married
Most people who meet the above criteria can write a will.
Testamentary Capacity and Intent
While most adults have the legal capacity to write a will, they must also understand what they are doing when they draft one. If somebody is elderly, incapacitated, or under undue influence, their will may be found invalid by a probate court.
Showing testamentary capacity and intent requires that an individual:
- Understands that they are making a will
- Understands the effect of making a will
- Knows the nature and extent of their assets and property
- Knows which people are likely entitled to their assets (relatives)
- Recognizes that a will leads to the disposal/distribution of assets after death
- Discerns how the elements constituting a will lend to its execution
In other words, a person drafting a will—or signing a will that an experienced estate planning attorney helped create—must be able to understand what the will does, who will receive the assets cited in the will, and that they have created a document to dispose of their assets after death.
If a testator lacks testamentary capacity and intent, an heir or prospective heir could challenge the validity of the will in probate.
The Different Types of Will
Anyone seeking to write a valid, legal will in Texas must also follow the state’s formal requirements for drafting one. Texas recognizes two different types of will:
- Holographic wills, or wills which are handwritten. For a will to be considered valid, a holographic will must have been written entirely in the testator’s own handwriting, and it must also be signed. Holographic wills do not require the signature of any witness, and it doesn’t need to be notarized.
- Attested wills, or wills which are not entirely in the handwriting of the testator. An attested will may be a document written on a computer or prepared by an attorney. For an attested will to be considered valid, it must be signed by the testator or another person authorized to sign for the testator in the testator’s presence. It must also be signed by at least two credible eyewitnesses over the age of 14.
Texas residents may also insert a “self-proving” affidavit into their will. A self-proven will is one which eliminates the need for witnesses to verify the validity of a will in probate. In order for a Texas will to be self-proving, it should be accompanied by an affidavit which is signed by the testator, at least two witnesses, and a notary.
Wills are frequently challenged in Texas probate. Under Texas law, “any interested party” may contest a will. Here, “any interested party” simply means anyone who may be impacted by the outcome of probate proceedings, and this may include children, estranged spouses, or even prospective creditors.
However, anyone seeking to challenge a will must demonstrate their stake in the estate. Texas’s probate code recognizes the following as valid grounds upon which to contest a will:
- Revocation, or instances in which a valid will was later revoked or replaced by another will
- Lack of testamentary capacity or intent, or instances in which the testator did not understand what they were doing when they wrote the will or selected inheritors
- Improper execution, or instances in which the will cannot be considered valid under Texas state law
- Undue influence, or instances in which the testator’s mind or intent was “overpowered” by external influence, and they would not have executed the will if not for that influence
- Fraud, or instances in which the will was falsely created or amended
- Mistakes, or instances in which an interested party believes the will was written with accidental errors
In general, the person seeking to challenge a will has the burden of proof to demonstrate that a will is invalid.
What Happens If a Will Is Found Invalid
If a will does not meet the legal requirements and is found invalid by a probate official or after a challenge, the decedent’s estate will be distributed according to Texas’s intestacy statutes. In effect, a Texas probate judge would follow a pre-determined legal formula to decide how the estate’s assets will be distributed. This formula tends to favor close relatives such as spouses, children, and parents, but it may disburse assets to more distant relations, too.
This can have major consequences. For instance:
- The assets of a single person who died without children could pass entirely to their parents, even if they did not have a good relationship with them.
- The assets of a married person who died with children from a prior marriage may see their assets split between the surviving spouse and their children, even if their spouse is financially well-off, and they had wanted their children to receive a larger inheritance.
When intestacy proceedings take place, the deceased’s final wishes no longer matter, unless they established a trust or had a comprehensive estate plan intended to remove valuable assets from probate.
How an Estate Planning Attorney Can Help
If you are writing a will or amending an existing one, a Texas estate planning attorney can help ensure that your documents are legally valid and less likely to be successfully challenged in probate. Furthermore, a lawyer can help recommend strategies for people with more complex estates, who may benefit from establishing a revocable living trust or the use of beneficiary designations.
To get help making your legacy more secure, send Colin Smith Law a message online, call us, or visit any of our Dallas, Collin, or Denton County locations to schedule your free initial consultation.