The official Texas state motto is “friendship,” although many people believe it must be “Remember the Alamo!” Other contenders are “Everything is bigger in Texas'' and “Texas: go big or go home.” Or maybe even “Hook Em Horns!” (I have to think the Aggies or Horned Frogs might have a thing or two to say about that). But these slogans all hint at a fundamental truth about the Lone Star State, and that’s “Remember to Write Your Will!”
Okay, okay, I know you didn’t expect the slogan to inform you that you must make your Will. But there are some big, bad consequences to dying without a Will in Texas. If you die intestate, then the court will decide who gets your assets, including your real estate, cars, boats, cash, and everything else you enjoyed as a part of your larger-than-life Texas lifestyle. Texas’ intestate laws won’t even let your grandchildren or siblings inherit from you unless you left a valid legal Will.
Here then are our best tips for writing a valid Will in Texas.
Who May Make a Will in Texas?
Chapter 251 of the Texas Code deals with Wills. Under state rules, a person who executes a Will must be of sound mind. This is known as having “testamentary capacity.” Testamentary capacity, also known as sound mind or mental capacity, refers to an individual's legal and mental ability to create a valid Will. In order to have testamentary capacity, a person must be able to show that they fully understand the nature and consequences of creating a Will. The most important factors in determining whether a person has testamentary capacity are as follows:
-
They have an understanding that the Will is a legal device that will dictate how their property will be distributed after their death.
-
They have knowledge of the extent and nature of their assets and property and its approximate value.
-
They are able to identify and name the individuals or organizations they wish to include as beneficiaries in their Will.
-
They are fully capable of making rational decisions and have not been unduly influenced or coerced by other people.
A person must also have the legal capacity to make a Will, meaning they may make a Will if they are (1) at least 18 years of age or older or (2) under 18 but have been married, or (3) are 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.
How Do You Validate a Will in Texas?
Under Texas Code Sec. 251.051, a Will must be in writing and signed by the person making the will (the “testator”) in person. Another person may sign on the testator’s behalf if they are in the testator’s presence and are doing it under the person’s direction.
Two or more credible witnesses must witness the signature. The witnesses must be at least 14 years of age and must write their names on the Will in their own handwriting in the testator's presence.
Oral Wills are no longer valid in Texas unless they are made prior to September 1, 2007.
Holographic Wills in Texas
There is an exception to the rule that a Will must be witnessed and that is for handwritten Wills. Texas recognizes the validity of holographic Wills and they do not need to be witnessed. However, FastWill strongly urges you not to make a holographic Will because they are more often invalidated by the courts. The reason for this is that you must follow several formalities that are difficult to keep track of. For example, you must state that you intend to bequeath your belongings, name your beneficiaries, name an executor, state that you want the executor to “serve without bond”, sign and date each page. It is faster and more accurate to simply use a personalized Will created by FastWill that will show you exactly how to use the right formalities.
Self-Proving Wills in Texas
Typically when a Will goes through probate in Texas, the witnesses must appear in court to verify that they witnessed the person make the Will. However, you can skip this step if you pick a self-proving Will. A self-proving Will is a type of will that includes an affidavit or a sworn statement signed by witnesses and notarized. This affidavit serves as evidence that the Will was executed properly and that the testator had testamentary capacity at the time of signing. By including a self-proving affidavit, the will can be admitted to probate without requiring the witnesses to testify in court to confirm its validity.
Special Deeds in Texas
Texas makes it simple to transfer real estate without going through probate, which means your beneficiaries could receive property faster. Here’s a quick rundown of the special deeds available in Texas.
Transfer on Death Deed (TODD)
A TODD lets you name a beneficiary in the deed itself. That means when you die, the property will be transferred to the person you name. You must follow proper procedures to use this effectively. Specifically, the TODD has to be signed and then filed in the county where the property is located. This must happen before you die. If a beneficiary tries to put themselves on the deed after you have passed, the TODD is invalid. You can use this procedure if your only asset is real estate.
Life Estate Deed
A Life Estate Deed also transfers real estate. However, it transfers the property to your beneficiaries while you are still alive, while allowing you to keep living in the property until your death. This creates something that lawyers call a “life estate.” If you sign a Life Estate Deed, then you will not be allowed to sell the property unless the beneficiaries on the deed agree with the sale.
Lady Bird Deed
Lady Bird Deeds are named after Lady Bird Johnson, the wife of President Lyndon Johnson. These deeds give you the right to sell, live in, or add a mortgage on the property while alive, the same as you can do when you own real estate. The only thing that makes this deed different from a TODD is that you can sell or mortgage the property. With a TODD you can’t do that. The beneficiaries you add to the Lady Bird Deed will receive the property if you still own it when you die. If you don’t own it, they have no recourse.
In conclusion, you can always write a DIY Will in Texas as long as you follow the dictates of the law. Remember that after writing your Will with FastWill, you should review it any time your life goes through a big change, like birth, adoption, death, marriage, divorce, remarriage, moving, and acquisition or sale of the property. You should make a point of reviewing your Will annually to keep it updated.
