Posted in Blog on March 30, 2022
In Texas, if you die without a will, your property will be distributed according to state “intestacy” laws. Texas’s intestacy law gives your property to your closest relatives, beginning with your spouse and children. If you have neither a spouse nor children, your grandchildren or your parents will get your property. Intestacy can be time consuming and costly for your loved ones, not to mention the confusion caused by everyone trying to figure out what you wanted.
A will, also called a “last will and testament,” can help you protect your family and your property. You can use a will to:
leave your property to people or organizations
name a personal guardian to care for your minor children
name a trusted person to manage property you leave to minor children, and
name an executor, the person who makes sure that the terms of your will are carried out.
Regarding testators, the law says:
a person of sound mind has the right and power to make a will if, at the time the will is made, the person: (1) is 18 years of age or older; (2) is or has been married; or (3) is a member of the armed forces of the United States, an auxiliary of the armed forces of the United States, or the United States Maritime Service. Texas Estates Code § 251.001.
A will must be:
(1) in writing;
(2) signed by:
(A) the testator in person; or
(B) another person on behalf of the testator:
(i) in the testator’s presence; and
(ii) under the testator’s direction; and
In addition, Texas allows a will to be made without witnesses if it is written by hand and signed by the testator. Texas Estates Code § 251.052. This is called a “holographic will”. Holographic wills offer some convenience, but they come with the risk of making mistakes that could leave a will invalid.
Under Texas law, a will is filed with the court after the death of the testator. Texas Estates Code § 256.003. So, after you pass away, your will should be filed in your local probate court by the person named to be your personal representative (also called an “executor” or “administrator”). This will begin the legal process known as “probate” through which your wishes are carried out under court supervision.
In the meantime, store your will in a safe place and make sure the right people know where to find it. Note: It is not a good idea to store a will in a safe deposit box, because accessing the safe deposit box can depend on getting court approval, and getting court approval can depend on what the will says!
To finalize your will in Texas:
you must sign your will in front of two witnesses, and
your witnesses must sign your will in front of you.
Your witnesses must be at least 14 years old and write their signature in their own handwriting. Tex. Est. Code § 251.051.
No, in Texas, you do not need to notarize your will to make it legal. However, Texas allows you to make your will “self-proving” and you’ll need to go to a notary if you want to do that. A self-proving will speeds up probate because the court can accept the will without contacting the witnesses who signed it. To make your will self-proving, you and your witnesses will go to the notary and sign an affidavit that states who you are and that each of you knew you were signing the will.
By the time a will is submitted to a court, it can be difficult to find witnesses and bring them all to court — not to mention the legal costs. So you should definitely make your will self proved to help your loved ones avoid this hassle.