Although the primary purpose of a Texas will is to dispose of a person's property at the time of his death, wills also serve several other purposes, including naming a person as an executor and naming a guardian for the decedent's children. While Texas law does not require that an attorney draft a will, certain rules must be followed for the will to be considered valid. There are requirements that must be complied with for all types of wills in Texas, as well as requirements specific to whether the will is typed or handwritten.
Requirements for All Wills
The testator, the person making the will, must have the "intention to create a revocable disposition of the property to take effect after his death," as the Texas Supreme Court described in the 1955 case of Hinson v. Hinson. Normally, this is evident by signing a document clearly labeled as a will.
The testator must also be of sound mind and legal age or characteristic. He must be at least 18 years old; if he's younger than 18, he must be married or in the armed forces when making the will. To be of sound mind, he must generally realize the importance and effect of creating the will and know about the property he's disposing of. The testator may have been incapacitated at other times but still has the legal capacity to make a legal will if he is lucid on the day he created the document. A will may be valid even if the testator is delusional, as long as the delusion does not affect the provisions in the will.
After disposing of his property in the will, the testator must sign the will for it to be valid. He may do this in his own handwriting, by using a mark or by directing someone else to sign the will for him.
Holographic wills are handwritten documents. These wills do not have to be witnessed. For such an unwitnessed will to be valid in Texas, it must be "written wholly in the testator's handwriting," according to Section 251.052 of the Texas Estate Code.
To avoid a potential contest to the will, a testator may include a self-proving affidavit, either at the creation of the will or by a later attachment. This affidavit must state that:
- the instrument is the testator's last will
the testator was 18 when she made the will or was married or in the armed forces when she made the will
- she was of sound mind when she made the will
- she has not revoked the will
Attested wills are wills that are witnessed. All wills in Texas must be witnessed except for holographic wills. In Texas, witnesses must be at least 14 years old; they must sign their names to the will in the testator's presence.
When the will is probated, the witnesses may be called on to attest to the validity of the will. They can avoid this by executing a self-proving affidavit. The witness may sign such a form as provided in the Texas Estate Code.