Can A Beneficiary Witness A Will In Texas?

Yes, a beneficiary of a will can witness the will under Texas law, but probably should not.

A Bequest To A Beneficiary Witness Is Void Under Texas Law With Limited Exceptions

Section 254.002 of the Texas Estates Code addresses bequests to subscribing beneficiary witnesses and states:

(a)  Except as provided by Subsection (c), if a devisee under a will is also a subscribing witness to the will and the will cannot be otherwise established:

(1)  the bequest is void; and

(2)  the subscribing witness shall be allowed and compelled to appear and give the witness’s testimony in the same manner as if the bequest to the witness had not been made.

(b)  Notwithstanding Subsection (a), if the subscribing witness described by that subsection would have been entitled to a share of the testator’s estate had the testator died intestate, the witness is entitled to as much of that share as does not exceed the value of the bequest to the witness under the will.

(c)  If the testimony of a subscribing witness described by Subsection (a) proving the will is corroborated by at least one disinterested and credible person who testifies that the subscribing witness’s testimony is true and correct:

(1)  the bequest to the subscribing witness is not void under Subsection (a); and

(2)  the subscribing witness is not regarded as an incompetent or noncredible witness under Subchapters B and C, Chapter 251.

This means that a bequest to a beneficiary witness to a Texas will is void, unless one of the following apply:

  1. If the will can be “otherwise established,” such as by the testimony of another witness, the bequest to the beneficiary witness will not be void.
  2. If a beneficiary witness is also an intestate heir under Texas law, the beneficiary witness is entitled to receive a portion of the bequest that does not exceed the amount to which the beneficiary would have been entitled if the testator had died intestate.
  3. If the beneficiary witness’s testimony is corroborated by at least one disinterested and credible person who testifies that the beneficiary witness’s testimony is true and correct, then the bequest to the subscribing beneficiary witness is not void.

Having a beneficiary witness a Texas will creates hurdles to overcome to establish the validity of the bequest in Texas probate court.  Therefore, the prudent course of action would be to simply have two disinterested, credible witnesses to the will.

If for some reason you want to have a beneficiary of the will witness the will, have two additional, disinterested and credible witnesses sign as well.

Who Can Witness A Will In Texas?

To be valid under Texas law, a will must be in writing, signed by the testator in person, or by another person on behalf of the testator in the testator’s presence and under the testator’s direction, and properly witnessed.

To be properly witnessed, the will must be attested by two or more credible witnesses who are at least 14 years of age.  The attesting witnesses must subscribe their names to the will in their own handwriting in the testator’s presence.  Section 251.051, Texas Estates Code.

An exception to this rule is a will written wholly in the testator’s handwriting (a holographic will).  A Texas holographic is not required to be attested by subscribing witnesses.  Section 251.052, Texas Estates Code.

 

Find Your Probate Star

Lawyer Locator Front End

San Antonio

Gilbert Vara, Jr.

Dallas

Steven S. Boss

Houston

Grace P. Shoemakers

Austin

Kyle Robbins

Williamson County

Lorenza Cigarroa

Grayson County

Jacob Pelley

Find Your Texas Probate Star

San Antonio

Gilbert Vara, Jr.

Austin

Kyle Robbins

Houston

Grace P. Shoemakers

Dallas

Steven S. Boss

Williamson County

Lorenza Cigarroa

Grayson County

Jacob Pelley