Writing a valid will is the very best way to ensure that an estate is distributed exactly as a person wishes, eliminating any doubt about what that family member “would have wanted.” Among its important purposes, it allows the person writing the will, the testator, to identify beneficiaries, distribute assets, and choose a legal guardian for any minor children. A will also names an executor for the estate, the person responsible for carrying out the wishes expressed in the will as well as managing financial issues tied to the estate, such as taxes and debts. In order for a will to be considered valid in Texas, it must include several elements, as outlined in section §251.051 of the Texas Estates Code cited below:
Effective: September 1, 2017
V.T.C.A., Estates Code § 251.051
Formerly cited as TX PROBATE § 59(a).
§ 251.051. Written, Signed, and Attested
Except as otherwise provided by law, 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
(3) attested by two or more credible witnesses who are at least 14 years of age and who subscribe their names to the will in their own handwriting in the testator's presence.
Although oral wills were at one time an acceptable format for a will in Texas, an oral will created after September 1, 2007 is no longer valid in Texas. However, wills created in other states or countries which abide by the statutes of those states or countries are valid in Texas.
According to Estate Code § 251.052, hand-written wills, called holographic wills, are valid as long as they are completely hand-written in the testator’s handwriting; signed by the testator; state exactly who gets which specific assets; and include language that is irrevocable at his or her death, which clearly reflects the testator’s intention to provide assets to beneficiaries.
While it is possible for a person to write his or her own will in Texas, and a hand-written will is better than no will at all, these statutes do not fully convey the difficulty of writing a strong will, one that clearly and accurately reflects the desires of the testator without ambiguity and without omitting key information. A lawyer trained in probate law will write a will that not only follows Texas statutes, but also uses specific language which makes the will easier to understand, follow, and probate. To simplify the probate process for loved ones, working with a lawyer is the best option.
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