Few of us want to think about our own mortality. Yet planning for the future is an important way to ensure that our wishes are followed after we die. A last will and testament is the best way to achieve that objective.
Commonly referred to as a will, this legal document allows you to identify your beneficiaries, dictate how your property will be distributed after you pass away, nominate an executor, and choose a guardian for your minor children (if any). There are two types of wills in Texas: handwritten, or holographic wills, and attested wills. To be valid, each will must meet certain requirements.
If you are considering drafting a will, working with a skilled El Paso estate planning lawyer can help ensure that it is valid. At Forbes & Forbes, we help individuals, families, and businesses with their legal needs – including drafting last wills and testaments that help our clients achieve their goals.
What Makes a Will Legal in Texas?
For both holographic and attested wills, there are three requirements that must be met for the will to be valid. In addition, there are specific formalities that must be completed to ensure that the will is upheld.
First, the person making the will (testator) must have the legal capacity to do so. You have the legal capacity to make a will if you:
- 18 years of age or older;
- Have been lawfully married; or
- Are a member of the United States armed forces.
Most people have legal capacity because they are 18 years of age or older. However, if you are under the age of 18, you may have legal capacity if you are (or were) legally married or if you serve in the military.
Second, the testator must have what is known as testamentary capacity. This is a legal term that essentially means that you are of “sound mind” and are capable of making a will.
A person has testamentary capacity if they have the mental ability to understand:
- That they are making a will;
- The nature and extent of their property;
- The persons who are the natural objects of their bounty (beneficiaries);
- The effect of making a will;
- That they are disposing of their assets; and
- How these elements relate to form an orderly plan for the disposition of their property.
The issue of testamentary capacity often comes up when a will is contested, with one side arguing that a testator lacked the capacity to make a will and may have been tricked or induced into making a will. For example, if an elderly parent with dementia changed their will to benefit one sibling and disinherit two other siblings, the two siblings who were cut out of the will may argue that their parent lacked testamentary capacity to make the will.
Third, the testator must have testamentary intent. This legal term simply means that at the time that the will is signed, you intend to make writing that sets forth how your property will be distributed after your death.
Valid Will Requirements in Texas
In addition to the above requirements, a person must also comply with certain formalities in Texas law. The specific formalities depend on the type of will at issue.
For holographic, or handwritten wills, there is just one formality: the will must be written in your own handwriting and signed by you. There is no requirement for witnesses to a holographic will.
For attested wills, which include any will that is not completely handwritten by the testator, there are two requirements. First, the will must be signed by the testator or a person on their behalf, in their presence, and under their direction. Second, the will must be attested to by two or more credible witnesses who are at least 14 years and who sign their names in their own handwriting to the will in the presence of the testator.
In addition, a testator can add a self-proving affidavit to a will. To do so, the testator and witnesses sign and swear to an affidavit, which is then notarized and attached to the will. The benefit of a self-proving will is that it can be used in lieu of courtroom testimony by the witnesses in the event that the will is challenged, which can save significant time and money.
Importantly, unless the will is self-proving, a will does not have to be notarized. If a testator chooses to make a self-proving attested will, however, a notary will need to witness the signatures of both the testator and the witnesses.
If a will does not meet these legal requirements, it will be declared invalid. Your estate will then be distributed in accordance with Texas law on intestate succession.
Finally, a person may make multiple wills over the course of their lifetime. Generally, the newest will trumps older wills. A skilled El Paso estate planning attorney can work with you to make sure that your current wishes are reflected in your last will and testament.
Ready to Take the Next Step? Reach Out Today.
It can be daunting to think of planning your estate, but as the old saying goes, “failure to plan is planning to fail.” A good estate plan, including a last will and testament, is critical for everyone to have in place to protect their assets.
At Forbes & Forbes, we help people with all aspects of estate planning, from drafting wills to forming trusts. With considerable experience, we have the in-depth knowledge of Texas law necessary to ensure that your wishes are followed. To learn more or to schedule a consultation with an El Paso estate planning lawyer, call us at 915-533-5441 or fill out our online contact form.
