The Common Law

Preparing a will under Texas law

What does a person need to do in Texas to make a will? Can they write their own will, or do they need a lawyer to prepare one for them?

The Texas Probate Code recognizes three different types of wills: a deathbed or nuncupative will, a handwritten or holographic will, and a typewritten or formally attested will. Because of the multiple drawbacks of the first two wills, formally attested wills are the most common.

A formally attested will must comply with several basic requirements under Texas law. For example, someone that wants to create a will must have the capacity to do so. Anyone who is of sound mind and is at least 18 years old, lawfully married, or a member of the U.S. Armed Forces has the capacity to create a valid will.

A will should also be written in a way that clearly demonstrates the maker's intent. However, a will does not have to be overly specific in regard to naming assets. In fact, it could simply state that all of the maker's assets go to a specific person. Again, the idea is to be as clear as possible so that the maker's intent is evident. Ambiguous or contradictory language could lead to interpretation problems.

Furthermore, another important requirement of a formal will is that it be properly signed and executed. The maker and two witnesses (each of whom must be at least 14 years old) should sign their names at the end of the will. Although not essential, a notary's presence is also recommended. The notary usually signs a separate piece of paper containing a sworn affidavit, which states that this document is the last will and testament of the maker. The will is then said to be self-proving; therefore, witnesses will not be required to testify as to the document's authenticity during probate.

While a lawyer's help is not essential to constructing a valid will, at the minimum, it is certainly advisable to have an attorney review the will to ensure that it produces the desired results.

Please submit column suggestions, questions, and comments to thecommonlaw@austinchronicle.com. Submission of potential topics does not create an attorney-client relationship, and any information submitted is subject to being included in future columns.

Marrs, Ellis & Hodge LLP, www.jmehlaw.com.

The material in this column is for informational purposes only. It does not constitute, nor is it a substitute for, legal advice. For advice on your specific facts and circumstances, consult a licensed attorney. You may wish to contact the Lawyer Referral Service of Central Texas, a non-profit public service of the Austin Bar Association, at 512-472-8303 or www.austinlrs.com.

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