How to write a will in Texas

A last will and testament, sometimes called a “will,” is a legally binding document that enables an individual to articulate precise desires that will be implemented upon their demise. The following are the necessary steps to create a will:

1. Determine the method you will use to draft your will. You may opt to purchase a will kit, utilize an online will template, or employ the services of a lawyer.
2. Decide on who will receive your assets. Your designated beneficiaries are the individuals or entities you choose to receive your assets upon your demise. Another option is to leave a charitable contribution in your will.
3. Select suitable guardians for your underage children or pets, if applicable.
4. Select your designated executor. This individual will collaborate with the probate court to execute the instructions specified in your will.
5. Execute and have your will attested per the legal requirements of Texas, which necessitates the presence of two witnesses who are at least 14 years of age.
6. Ensure the secure storage of your last will and testament.

Why should I make a Texas will?

Some of the benefits of drafting a will in Texas include the following:

1. Express your desires

In the event that you do not have a legally valid will, the distribution of your assets will be determined by the laws of intestacy rather than per your intentions.

2. Minimize the time, financial resources, and emotional strain experienced by your loved ones.

Articulating your desires concisely and unambiguously can effectively mitigate expensive and protracted conflicts about allocating your possessions. Virtually every estate must undergo probate court proceedings to initiate the legal procedure that supervises the allocation of assets. However, without a will, the legal procedure known as intestate administration is evoked and can become intricate. Without a will, the court appoints an administrator to oversee the management of your estate. Moreover, this process can be laborious and costly and could cause disagreements among your family members.

3. Minimize estate tax

Prudent formulation of your will might minimize the sum of inheritance tax that your descendants will be required to pay following your demise.

4. Select an executor to oversee the administration of your estate.

Only by writing a will can you specify who will manage your estate and distribute your assets as you choose. In the absence of a valid will, the appointment of an executor is at the court’s discretion. The court often appoints the individual who requests the position first, which may differ from the person you would have desired to take up the executor role.

5. Determine the beneficiaries and non-beneficiaries of your assets and property.

A will gives one the ability to pick who will inherit their possessions. As the testator, you can designate individuals as beneficiaries for particular assets. Beneficiaries can additionally be named for any property you do not specify in your will; this is referred to as the “residuary” of your estate. The distribution of these assets will fall under the purview of the executor responsible for handling your will. Additionally, a will can be used to guarantee that specific individuals do not inherit assets or possessions. For instance, you may desire to prohibit a former spouse from obtaining an inheritance.

6. Select the individual who will assume responsibility for the care and well-being of your underage children.

Having a will is essential for parents who have children, especially if the children are under 18 years old and require someone to manage their inheritance or be appointed as their guardian in the event of the parent’s death.

7. Select the individual who will assume responsibility for the care and well-being of your pet(s)

By expressing your testamentary wishes, you may ensure that a designated individual assumes responsibility for caring for your pet upon your demise. According to legal regulations, pets are classified as property, so it is impossible to include them as beneficiaries in your will. However, it is possible to designate a beneficiary for your pet, entrusting them to a reliable friend or family member. You can request that individual to assume the role of a caretaker or guardian for your pet, and you may additionally allocate monies to ensure the provision of your pet’s care.

8. Reduce the likelihood of disagreements within the family.

In the event of your demise without a will, your family will be left to speculate about your ultimate desires. Moreover, it is likely that they will not consistently concur. This uncertainty can give rise to conflict and even altercations, which can persist for a lifetime. Drafting a will effectively resolves the issue by eradicating any uncertainty.

9. Donate to the causes that are important to you.

After death, many hope to have made a beneficial difference in the world. One excellent method to achieve this is to give to the organizations whose missions align with yours. One way to leave a lasting impression is to leave a portion of your estate to a charity in your will.

10. Specify funeral arrangements

Contemplating one’s funeral may be undesirable. However, by considering this matter and including explicit directives in your will, you can alleviate the responsibility on your dear ones following your demise. Although these instructions are not legally enforceable, they can provide information to your executors and loved ones regarding your desires. You may do several things when you leave instructions, such as appointing someone to oversee the funeral arrangements, suggesting a venue and service details, requesting a specific burial site, and more.

11. Attain a state of tranquility.

Making or revising a will allows you to provide for your loved ones and clearly state your wishes in the event of your death. Many individuals find this to be the most essential reason to make a will, as it provides them with peace of mind.

What happens if I don’t have a will?

In the event that you die without a will, which is referred to as dying “intestate,” your property will be dispersed per the laws of intestate succession. The intestacy laws shall delineate the sequence in which assets will be allocated to living family members. Where such a situation arises, the deceased’s property will generally be distributed in proportions as outlined in section 201.002 of the Texas Estates Code. Where applicable, these proportions will be allocated to the spouse and any surviving children, parents, or siblings.

Nevertheless, if a decedent person did not have a spouse at the time of their demise, their property shall be transferred according to the below sequence:

1. At the top of the list is the decedent’s children and the descendants of those children
2. Where no children were born to the decedent, then in equal proportion, the amount will be given to the parents
3. Where there is only one parent who is still alive after the decedent’s passing, then the remaining parent will get half of the property, while the remaining half will be distributed among the decedent’s siblings and the descendants of her siblings.
4. In the event that the decedent individual did not have any living parents at the time of their passing, their whole estate would be inherited by any surviving siblings and the children of those siblings.
5. In the event that the decedent individual did not have any living children, parents, or siblings, their estate would be inherited by more distant surviving relatives, such as grandparents and cousins. The intestate succession rules would determine the order of precedence for inheritance.
6. In exceptional circumstances where the decedent individual has no living heirs, their estate becomes susceptible to “escheat,” which entails the State of Texas assuming possession of any assets.

Do I need a lawyer to make a will in Texas?

No, you do not need a lawyer to make a Texas will. By adopting the do-it-yourself (DIY) option, some people choose to prepare their last will and testament without obtaining the counsel of an attorney. Creating one’s own will carries the risk of making a will that might be declared invalid in the future due to failure to comply with applicable regulations, which is typically not recommended. Having a lawyer at your side can help you navigate the legal responsibilities that must be fulfilled to guarantee that your will is valid and carried out per your wishes. In order to receive assistance in creating your Texas will, please contact LegalPen.

Is it legal to write your own will in Texas?

Yes, it is legal to write your own will in Texas. However, drafting your will without professional assistance may expose you to mistakes and risks that might invalidate the legal enforceability of your intentions. Certain persons opt to forgo the assistance of a legal counsel for particular reasons. Regardless of the underlying cause, it is worth considering an alternative approach of utilizing a reliable platform to create an online will such as LegalPen.

What is required for a will to be legal in Texas

The following stipulations guide how to make a will in Texas:

1. The will must be in writing
2. The testator must be at least eighteen years of age. This section does not apply to married people or those in the military.
3. The testamentary capacity, that is, a sound mind and memory, must be present in the testator. The evaluation of testamentary capacity is decided by analyzing the testator’s understanding of the process of creating a will, the implications of their actions, the extent of their assets, and the effects of including or excluding specific individuals from their will.
4. The testator must use their autonomy and willingly compose their will. This means that the will is void of undue influence or under duress.
5. The testator must sign the will in the presence of at least two disinterested witnesses. A disinterested witness is someone who has no personal interest or gain from the estate in question.
6. A minimum of two witnesses must observe the testator’s execution of the will and then sign the document. The witnesses must be individuals who are at least 14 years of age.

What are the requirements for signing a will in Texas?

The components that are required to make a legal will are substantially the same as the conditions that must be met to sign a will in the state of Texas, and these are:

1. Autonomy void of undue influence or duress
2. Testamentary capacity
3. Attainment of the legal age of 18 years 
4. At least two impartial witnesses of 14 years and above

A will must be signed by the testator, but someone else can sign it at their direction and in their presence. A simple gesture, an affirmative response to a query, or a clear expression might all serve as instruction from the testator.

How do I sign my Texas will?

What makes a valid signature, the location of the signature and the attestation of the signature will guide how you sign your Texas will.

There has been much legal action regarding the definition of a valid signature, and the courts, which aim to maintain the expressed intention of the person making the will, have acknowledged that not all testators can read or are in excellent physical condition. In Texas, a legitimate signature can be anything from a rubber stamp or typewriter to a mark or initials.

The testator is required to sign a will. However, it is permissible for someone else to sign it on their behalf, as long as they do so under the testator’s instruction and in their presence. The testator may provide instruction with a simple gesture, an affirmative response to an inquiry, or a precise phrase. A notary public can additionally sign the will. Still, for a notary to legally execute a will, the testator must give them instructions, a disinterested party must be present to witness the signing, and certain language must be placed beneath the signature. Where a will includes both the testator’s mark and a signature from another individual, it is considered legitimate.

Typically, a will is expected to be signed at the end of the will. However, the location of the signature inside the will is inconsequential as long as it appears anywhere within the document. Where the testator fails to sign the will altogether and instead signs the self-proving affidavit, a difficulty emerges as the self-proving affidavit bypasses the necessity for witnesses to physically attend the probate hearing in court. After extensive deliberation, the courts ultimately resolved that the signature is legitimate and that the will can be accepted for probate, but the self-proving affidavit is considered ineffective.

At least two trustworthy witnesses must be present when you sign your will. Your witnesses must be fourteen years or older to comply with the Texas Estates Code. A witness’s absence of financial gain makes them more “credible” in court. To rephrase, you should choose witnesses who will not benefit financially from your will.

Who can witness a will in Texas?

For a Texan Will to be valid, it is necessary for two witnesses to sign it:

1. The witnesses must be at least 14 years old, but it is recommended that they be at least 18.
2. The witnesses must possess credibility, indicating that they must be able to provide testimony regarding the factual details of the will’s execution.
3. Witnesses should be disinterested, meaning they should have no personal interest or benefit from the will. Gifts made in a will to a beneficiary who is additionally a witness are generally considered invalid. However, there are a few exceptions. A testator must exercise caution and avoid choosing a beneficiary who is an interested party as a witness. Although the presence of an interested witness does not automatically render a will invalid, it may give rise to a conflict of interest. Choosing an impartial person to witness your will is commonly recommended to prevent any potential disputes.

Witnesses confirm that the testator signed the will in their presence and that the testator was of sound mind and comprehended the will’s significance. It would help if you only chose reputable and trustworthy people to serve as witnesses in your will. Without proper witnessing, a will may be deemed invalid and unenforceable.

Should my will name an Executor?

Yes, your will should name an executor. An estate executor assumes control of an individual’s assets upon their death. This might encompass:

1. Obtaining copies of the death certificate
2. Informing beneficiaries, creditors, and other relevant persons about the individual’s demise
3. Submitting a copy of the will to the nearby probate court, which supervises the administration of estates
4. Settling all outstanding financial obligations
5. Administering the distribution of probate assets to the beneficiaries

In the event that an individual passes away without designating an executor in their will, or if the appointed executor is not accessible or incapable of fulfilling their duties and there is no alternate or successor executor, a probate court has the authority to designate another person as the “administrator” of the estate. An individual can volunteer and seek the court’s approval, or in the absence of volunteers, the court may approach a suitable person (often a close family) and request their service in the designated position.

Do I need to have my will notarized?

No, you do not need to have your will notarized; Louisiana is the sole state that mandates a will to be notarized. Notarization is the process of authenticating and certifying papers to confirm their authenticity and eliminate any doubts of forgery. Notarizing a will confirms the verification of the testator’s identity, the testator’s understanding of the will’s contents, and the witnessing of the testator’s signature. The self-proving affidavit attached to your will, and not the will itself, is where the notarization of your will takes place. Wills can be made self-proving with notarization, and the probate process will be accelerated since the probate court won’t have to call witnesses to testify. Due to this, notarization is advised, although only legally mandated in Louisiana.

Are holographic wills legal in Texas?

Yes, holographic wills are legal in Texas. Holographic wills are sometimes known as handwritten wills. A holographic will cannot be legally binding unless it is signed by the testator and written entirely in the testator’s handwriting. Where you adhere to these two conditions, witnesses are optional for the validity of your holographic will. Nevertheless, if you anticipate the possibility of someone questioning the legitimacy of your will, it is advisable to have witnesses. Since establishing their legal validity in court can be challenging, as they may include mistakes or ambiguous desires, holographic wills are discouraged. It is, however, better to have a holographic will than no will at all.

One disadvantage of holographic wills is that they are susceptible to attacks that formal wills are immune to. A witness familiar with your handwriting must testify to its validity to authenticate a holographic will for probate. In the event of a dispute over the will, it may be necessary for your estate to engage the services of a handwriting expert before probating the will.

Furthermore, although it may be easy not to have a witness present at the signing of your will, this implies that there will be no one to testify to the circumstances surrounding the event. Where an heir who has been disinherited wishes to contest your will, they may perhaps assert that you were mentally incapacitated or that someone exerted undue influence over you. In such a scenario, the absence of witnesses to testify either in favor or against these claims would be a hurdle.

What can I include in an online will in Texas?

The contents of a last will and testament differ significantly depending on an individual’s unique circumstances and the specific goals they aim to accomplish. Below are a few suggestions for content that may be incorporated into your online will:

1. A comprehensive record of your possessions and valuables
2. A compilation of the individuals who will get benefits from your estate, i.e., the beneficiaries
3. The bequests made, i.e., which assets go to which beneficiary
4. The individual you have chosen to administer your estate, known as the executor
5. A legal guardian for any children or pets to oversee the care or management of property left to the children or minor
6. Funeral and burial arrangements
7. Any directives or remarks for those you care for

Where can I find Texas’s laws about making wills?

The Texas Estates Code contains Texas’s laws about making wills. The Estates Code, which replaced the Probate Code in 2014, now primarily governs probate.

How to update your will in Texas

Individuals with a will that no longer aligns with their goals can modify it. There exist two fundamental methods to alter a will:

1. By composing a new will

Opting to create a new will has become the favored modification method. Nevertheless, writing a new will without considering the previous one exposes the will to potential legal disputes. It is imperative to revoke the old will explicitly.

2. By appending a codicil to an existing will

If you want to modify your will, consider adding a codicil rather than completely revoking it. A codicil must meet all other standards for validity in Texas, just like an ordinary will. Since codicils are not meant to constitute a whole will, this approach is not recommended since it leaves the testator with two legally binding testamentary documents, and if one is lost, it exposes the will to challenges.

For those curious about how often to update their will, please note that it is generally advisable to update your will whenever a situation may warrant such change, including, but not limited to, marriage, children, divorce, death of an executor or beneficiary, and acquisition of new assets.