A will, also called a last will and testament, is a legal document that, if part of wills, trusts, and estates, allows an individual to identify their beneficiaries and designate the way in which their estate will be distributed upon their death. A will in Texas may also be used to:
- Select a guardian to care for their child or children;
- Choose an individual to manage their property for their minor children;
- Convey decisions regarding their end-of-life care using an advance directive;
- Choose a trusted executor to ensure that the terms of the will are carried out.
Having a valid will in Houston or any other place in Texas allows the testator, or individual who makes a will, to provide for their spouse, children, pets, or other loved ones.
What Are the Requirements of a Valid Will in Texas?
Having a valid and properly executed will makes it less likely that an individual will contest a will in the future. In order to have a valid will in Texas, an individual must have legal capacity, testamentary capacity, and testamentary intent.
Although these formalities may seem overwhelming or confusing, they are not difficult to satisfy. Legal capacity is satisfied by the testator being:
- Over the age of 18;
- Legally married in Texas;
- A member of the armed forces.
Testamentary capacity means being of sound mind. This means that, at the time of the creation of the will, the creator is able to understand what they are doing, where they are, and the extent of their property.
An individual has testamentary intent if, at the time they sign their will, they intend to dispose of their property at the time of their death. If an individual is an adult, the simple act of creating a will to care for their loved ones will likely meet the required formalities.
The laws governing wills in the State of Texas allow for the creation of self-proving wills through self-proving affidavits. These affidavits fulfill the requirements listed above without the need for in-court testimony by the witnesses.
In addition to having legal capacity, testamentary capacity, and testamentary intent, there are other requirements an individual should be aware of, depending on the type of will they want to create.
Texas law recognizes two types of wills including:
- Attested will: An attested will is the most common type of will. In order to have a valid attested will, the will must be in writing, signed by the testator, and be signed in the presence of at least two witnesses over the age of 14;
- Holographic will: A holographic will is a will that is handwritten entirely and signed by the testator. With a holographic will, there is no requirement that it be signed in the presence of any witnesses;
- Texas law provides an individual with the option of adding a self-proving affidavit to their will, which saves a great amount of time and money down the road.
If an individual has any questions regarding creating a will in Texas, they should consult with a local lawyer in Texas.
How Much Does It Cost to Make a Will?
It may be difficult to provide an average cost of making a will in Texas. This is because each law firm and lawyer structures their fees in different ways.
For example, some lawyers offer flat fee rates for a will while other lawyers bill by the hour. The cost of creating a will in Texas will depend on numerous factors, including:
- The lawyer’s experience;
- The complexity of the testator’s assets and overall estate plan;
- How long the lawyer takes to draft the will;
- Any additional services that the law firms include as part of creating the will.
What Are Self-Proving Affidavits in Texas?
In the State of Texas, an individual can add a self-proving affidavit to their will. A self-proving affidavit is a written statement that is signed by credible witnesses at the time of the execution of the will that is attached to the will.
A self-proving affidavit affirms that:
- Witnesses were present at the time the will was signed;
- The signature was, in fact, that of the testator;
- The testator appeared to be of sound mind;
- The testator was not under duress or undue influence at the time.
Having a self-proving affidavit attached to a will often eliminates the need for witnesses to the signing to appear in front of a probate court to verify the authenticity of the will.
The Executor Requirement for a Will in Texas
A valid will designates an executor. An executor is a trusted individual who is appointed to administer an estate and probate a will after the testator passes away.
The executor a testator appoints will have a legal duty to act in the best interests of the estate. The executor of a will:
- Manages assets;
- Pays off the debts of the estate;
- Disposes of the estate and property according to the testator’s wishes.
In the State of Texas, an independent executor typically acts with little to no court supervision. In addition, they do not typically seek the permission of a court to act in their disposition of the testator’s estate so long as they act within the bounds of the law.
The court may intervene if the executor is not acting within the bounds of the law.
Can a Will Be Overturned?
In certain situations, a will can be congested and possibly overturned. A will contest commonly results in a legal dispute between named beneficiaries and individuals who were excluded from the will.
Common examples of will contests include:
- Disputes regarding who is entitled to what specific piece of property;
- Disputes associated with the amount of money that is being distributed and to whom the property is being distributed;
- Conflicts about specific personal property items, for example, family heirlooms;
- Conflicts as to whether an individual is actually entitled to receive an inheritance.
The most common individuals who contest a will are individuals who would lose their inheritance under the will if the will was deemed invalid. Each state has its own laws regarding who has standing, or the legal capacity, to contest a will.
When an individual contests a will, they may submit evidence showing their reasons for contesting the will. For example, they may provide direct testimony or other evidence demonstrating undue influence was involved in the will’s creation.
Do I Need a Last Will and Testament?
Having a last will and testament is not required by law. However, if an individual does not have a valid will, their estate and property will be disbursed according to the state laws of intestacy. These laws are typically complex, and the outcome of intestate succession may not always match up with the testator’s wishes.
Because of this, it is generally advised that an individual create and execute a valid last will and testament to avoid this issue altogether.
Can I Make a Will Without a Lawyer?
Yes, you can make a will without the help of a lawyer. However, estate laws and probate laws are oftentimes complex.
Having a Texas will attorney draft your will ensures that you create a valid will and provides you with the assurance that your estate will be distributed according to your wishes. If you believe there is a chance your will may be contested, or you have complicated goals, it is important to consult with a lawyer.
