Planning for the future is essential, and a will is one of the most important legal documents you can create. A will ensures your property is distributed according to your wishes and provides peace of mind for you and your loved ones. This blog article explains the basics of Texas wills, including the requirements for validity, rules for holographic wills, witness requirements, choosing a guardian for your minor children, what you can and can’t require of beneficiaries, and what happens if you pass away without a will in Texas.
Basic Requirements for a Valid Will in Texas
To create a valid will in Texas, you must meet specific legal requirements outlined in the Texas Estates Code:
- Legal Age and Capacity
- You must be at least 18 years old or:
- Married or legally emancipated, or
- Serving in the military.
- You must also be of sound mind, meaning you understand the nature of your assets, the people you’re leaving them to, and the effects of making a will.
- You must be at least 18 years old or:
- Written Document
- The will must be in writing. Texas does allow holographic (handwritten) wills, which we’ll discuss shortly.
- Signature
- The will must be signed by the testator (the person making the will) or by another person at the testator’s direction and in their presence.
- Witnesses
- A standard will (not holographic) must be signed by two competent witnesses who are at least 14 years old and who saw the testator sign the will. Witnesses do not need to read the will; they only need to observe the signing.
- Voluntary Intent
- The will must be created voluntarily, without undue influence, coercion, or fraud.
Choosing a Guardian for Your Minor Children in Your Will
If you have minor children, your will is the best place to designate a guardian to care for them in the event of your death. Without a will, the court will appoint a guardian, which may not align with your preferences. Here’s what you should know:
- Why It’s Important
- Designating a guardian ensures that someone you trust will raise your children if both parents are unable to do so.
- It avoids potential family disputes over guardianship, providing clarity and stability for your children.
- Who Can Be a Guardian?
- You can choose any competent adult to serve as a guardian, but it’s important to select someone who:
- Shares your values and parenting style.
- Has the emotional, financial, and physical ability to care for your children.
- Is willing to take on the responsibility.
- Always discuss your decision with the potential guardian to ensure they are comfortable with the role.
- You can choose any competent adult to serve as a guardian, but it’s important to select someone who:
- Backup Guardians
- It’s wise to name a backup guardian in case your first choice is unable or unwilling to serve.
- Include Specific Instructions
- You can include instructions in your will about how you would like your children to be raised, such as preferences regarding education, religion, or living arrangements. While these are not legally binding, they provide guidance for the guardian.
- The Court’s Role
- While the court generally honors the guardian named in your will, it must also confirm that the choice is in the best interests of the child. This adds an extra layer of protection.
Designating a guardian in your will is one of the most thoughtful ways to protect your children’s future and ensure their care aligns with your wishes.
Holographic Wills in Texas
Texas recognizes holographic wills, which are entirely handwritten by the testator. These wills do not require witnesses but must meet specific requirements:
- Entirely Handwritten
- The entire document must be written in the testator’s handwriting. Typed or partially handwritten wills do not qualify as holographic.
- Signature
- The testator must sign the document.
- Clear Intent
- The document must clearly express the testator’s intent to distribute their property upon death. Casual notes or unclear instructions may not be upheld.
- Probate Requirements
- After the testator’s death, the court may require two witnesses to verify that the handwriting belongs to the testator.
While holographic wills are legally valid in Texas, they can lead to disputes or confusion due to unclear language. A professionally drafted will is often a safer option.
Witness Requirements for a Will in Texas
For a standard (non-holographic) will, the witnesses must meet these criteria:
- Age and Competence
- Witnesses must be at least 14 years old and of sound mind.
- Disinterested Witnesses
- It’s best to choose disinterested witnesses—individuals who are not beneficiaries under the will. While interested witnesses (those who benefit from the will) are allowed, their inheritance could be voided unless the will is also witnessed by disinterested parties.
- Presence During Signing
- Both witnesses must sign the will in the presence of the testator. Witnesses do not need to read the will or know its contents.
What You Can and Can’t Require of Beneficiaries
In your will, you have the freedom to outline how your property will be distributed and impose certain conditions, but there are limits:
- What You Can Do
- You can leave property to specific individuals, charities, or organizations.
- You can include conditions for receiving an inheritance, such as requiring a beneficiary to graduate college or reach a certain age before receiving their inheritance.
- You can disinherit individuals, such as children or other family members, as long as it’s clearly stated.
- What You Can’t Do
- You cannot impose illegal or unethical conditions, such as requiring a beneficiary to divorce their spouse or commit an unlawful act to receive their inheritance.
- You cannot include conditions that are impossible to fulfill.
Consequences of Passing Without a Will in Texas
If you pass away without a will (intestate), Texas law determines how your assets are distributed. This process follows the Texas intestacy statutes, which prioritize family members in a specific order. Without a will, disputes may arise, delays occur, and your wishes may not be honored.
Creating a will is one of the most important steps you can take to protect your loved ones. Whether it’s ensuring your assets go where you intend or choosing a guardian for your minor children, a properly drafted will offers peace of mind and security. For assistance in creating a will that meets your needs, contact the Law Office of Steven C. Buitron today.
Steve Buitron, Esq.