Following the Formalities Is Key
Sometimes it is good to go back to basics. Take wills, for example. Texas has very specific requirements for a will to be enforceable. Failure to follow the requirements will result in the will being tossed out of court.
So, what formalities does Texas require for your will? They are fairly simple.
Basic Requirements for a Valid Texas Will
The Will Must Be in Writing
Your will must be in writing—either handwritten or typed, or a combination of the two. It can be in any language.
The Will Must Be Signed
You must sign the will. Your signature does not have to be a formal signature, and it can appear anywhere on the document.
If you cannot physically sign your whole name, then you can make your mark (such as signing with an X), or you can direct someone to sign on your behalf.
Witness Requirements and Procedures
Two Witnesses Must Attest
Two witnesses must attest that you, in fact, signed the will. They do not have to know that it is a will that you are signing. They do not have to actually witness you signing the will. They do not have to know the contents of the will.
Witnesses Must Sign in Your Presence
The two witnesses must sign, in their own handwriting, the will in your presence. Location matters – you must be able to physically see the witnesses sign from their actual position.
So, the witnesses do not have to be there when you sign your will, but you must be with the witnesses when they sign the attestation clause on your will.
Timing of the Signing
The order and timing of witnessing the will must be a continuous transaction. That does not mean it has to take place at the same time. In one case, the witnesses signed the will two years after the testator signed it, and the Court held the will was valid.
Credibility of Witnesses
The witnesses must be at least 14 years old. They must also be credible, which means that they should not receive any property under the will. A person named as an executor can serve as a witness provided he or she only receives compensation, and not a gift, under the will.
Exceptions to the Witness Requirement
Holographic Wills
There are two exceptions to the requirement that a will be attested by two credible witnesses.
The first is a holographic will, which is a will that is wholly in your handwriting. A holographic will does not require two credible witnesses.
Out-of-State or Foreign Wills
The second exception is for a will made or signed in another state or a foreign country. If the will is valid per that state or foreign country’s requirements, then it will be valid in Texas, even though it may not have been attested by two credible witnesses.
Making a Will Self-Proved
Now for the self-proving part. A will does not have to be self-proved to be valid, but if it is properly self-proved, then the witnesses should not have to testify at the probate hearing.
To be self-proved, your will must have an attached self-proving affidavit subscribed and sworn to by you and the witnesses, or it must be simultaneously executed, attested, and made self-proved with the proper language. Helpfully, that language is found in Texas Estates Code §251.1045.
How Hammerle Morris Handles Will Signings
In our firm’s practice, we hold the will signings in our office for wills that we have drafted. We provide the notary and the two witnesses.
We always follow the same procedures so that, if a question arises about the will execution, we can testify that it was our normal business practice to handle signings in a certain way.
The Importance of Proper Execution
A will is a basic estate planning document. Now you know the importance of executing it with the required formalities.
Protect Your Legacy: Make Sure Your Will Is Enforceable
At Hammerle Morris Law Firm, we understand that estate planning can feel complex and overwhelming. Making sure your will follows Texas’s legal formalities helps protect your wishes, your assets, and your loved ones.
Whether you’re drafting your first will, updating an existing one, or reviewing your estate plan, our team can guide you through the process. Schedule a consultation today to ensure your will is valid and your legacy is secure.
Virginia Hammerle is an accredited estate planner and represents clients in estate planning, probate, guardianship, and contested litigation. She may be reached at legaltalktexas@hammerle.com. This blog contains general information only and does not constitute legal advice.
