The requirements to make a will that is valid under Texas law are that the will must be:
- In writing
- 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
- 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.
The requirements for a valid Texas Will are found in Texas Estates Code 251.051.
A Texas Will Must Be In Writing
A will under Texas law is required to be in writing. This requirement is usually very easily met, as most wills are computer-generated.
A will can also be written entirely in the testator’s handwriting. Handwritten wills are called holographic wills. Holographic wills are valid in Texas and are not required to be attested by subscribing witnesses. This rule can be found in Texas Estates Code Sec. 251.052.
A Texas Will Must Be Signed
Texas law also requires that a will must be signed.
The will can be signed by the testator, or by another person on behalf of the testator. If another person signs on behalf of the testator, the person must sign in the testator’s presence and under the testator’s direction.
Witness Requirement For A Valid Texas Will
In order to be a valid Texas will, the will (unless it is a holographic will) must be witnessed by:
- 2 or more credible witnesses,
- who are at least 14 years old,
- who sign their names to the will in their own handwriting and in the testator’s presence.
The credibility of the witnesses is an issue for determination by the probate judge if the validity of the will is challenged. For example, if someone wants to contest the validity of the will based upon the failure to comply with the witness requirements, the witnesses would have to testify about the circumstances of the will execution so that the court could determine if the presence requirements were met. See In The Estate of Bedell to see one Texas case where the credibility of the witnesses was an issue.
A beneficiary of the will should also not serve as one of the required witnesses under Texas law, as we have written about here.
Who Can Make A Will In Texas?
To make a valid will in Texas you must be of sound mind and, at the time the will is made the person making the will:
- Is 18 years of age or older;
- Is or has been married; or
- Is a member of the armed forces of the United States, an auxiliary of the armed forces of the United States, or the United States Maritime Service.
What Is A Self-Proved Will?
A self-proved will is defined in Texas Estates Code sec. 251.101 and is a will:
- to which a self-proving affidavit subscribed and sworn to by the testator and witnesses is attached or annexed; or
- that is simultaneously executed, attested, and made self-proved as provided by Section 251.1045 (Simultaneous Execution, Attestation, and Self-proving).
A self-proving affidavit has specific requirements to be valid under Texas law. It must be:
- made by the testator and by the attesting witnesses before an officer authorized to administer oaths;
- the officer must affix the officer’s seal to the self-proving affidavit; and,
- the self-proving affidavit shall be attached or annexed to the will.
Section 251.104 of the Texas Estates Code sets forth the requirements for a self-proving affidavit and also provides a form that can be used.
As an alternative to the self-proving of a will using affidavits, a will can be simultaneously executed, attested, and made-self-proved by signing before an officer authorized to administer oaths and including self-proving language in the will. Form language can be found in Texas Estates Code 251.045.
A self-proved will may be admitted to probate without the testimony of any subscribing witnesses. Texas Estates Code sec. 251.102.
A Texas probate attorney can make sure that your testamentary wishes are honored by complying with all of the requirements necessary to make a valid will.
