For a will to be valid in Texas it must be in writing. Writing in 2022 can take on multiple forms but you must be able to "see" the will and it must physically exist. Computer-generated wills are increasingly common but must be printed out. Maybe someday the law will catch up to technology and a PDF version of your will on the desktop for your computer will count as valid but today it does not. If you take the time to draft a will on the computer, you need to print it out.
There is an age minimum of 18 years for your will to be valid. The same justification for this applies to many other areas of life. An 18-year-old cannot enter into a contract, for example, and cannot also draft a valid will. There are exceptions to this rule. If you have married and are under the age of 18 then you would also be able to draft a valid will. Additionally, if you have begun service in the military, you would also be able to draft a valid will. Only seems fair, right?
Having a certain degree of soundness when it comes to your mental capacity is important, as well. The State of Texas wants to ensure that its citizens who create wills are capable of doing so from a mental perspective This means that you need to understand what wills are and what the consequences of creating a will are. Next, you need to have displayed an understanding of your property, debts, relationships with spouses and children, and things of this nature. Basically, would it appear to a neutral observer that you thought for any length of time about how your will would impact your children? This includes having the ability to think through tough issues like naming guardian(s) for your children if you and your spouse pass away simultaneously.
If the validity of your will is ever challenged, a court would look to see if you were forced or coerced into creating the will. Unfortunately, we do hear about situations where someone is pressured into creating a will by someone who is in a position of power or authority over him or her. An example of this would be if you were being taken care of by another person and he or she forced you to draft a will leaving all of your property to him or her.
Finally, the will must be signed by you but not before you appear before two witnesses who will also sign your will. A witness to a will signing must be at least fourteen years old. You should be careful to make sure that the witnesses to your will signing are not also beneficiaries under the will, meaning that they stand to receive property once you pass away. Your teenage children would not be able to witness the signing of your will, in other words. Neighbors, friends, or even two people from your bank or credit union could be called upon to act as witnesses if you needed them to be.
To notarize or not to notarize
A requirement in some states would be to have your will notarized by a notary public to validate it. This would entail going to a place that has a notary public on staff, such as an attorney's office, insurance agency, or bank, and likely paying a small fee to the notary to notarize the document. You would either need to bring your witnesses to the office with you or ask if someone at the office would act as a witness on your behalf. It is a commonly held belief that in Texas you must have your will notarized to have it be valid. What we should ask ourselves is whether this is true. After all: why would you add steps to a process when that is unnecessary?
The reality of the situation is that it is not legally necessary for you to have your will notarized to make it valid. a will that is not notarized is just as valid as a notarized will. However, by notarizing your will you make it self-proving. A self-proving will is one that a court will declare as valid without first contacting the witnesses who signed the will. If your will has to go through the probate process, then this can save some time and money for your estate and those beneficiaries who stand to benefit from the contents of the will. You should include a self-proving affidavit in the will. You and your witnesses would state within the affidavit that your will was signed by you in front of those witnesses.
How are handwritten wills treated in Texas as far as validity?
For many people, putting their thoughts down on a computer as far as their will is concerned may be beyond what they are comfortable doing. Or, if you are someone that does not own a computer and maybe import health then simply scratching out in your handwriting on a legal pad a will is the best you think you can do. Fortunately, handwritten wills are valid in Texas so long as the will is completely in your handwriting and signed by you. So long as his two requirements are met you don't even need to have witnesses present. If you have, I thought that there may be someone in your life who made a challenge the validity of your will, however, you should consider having witnesses to the signing of your will to prove its validity.
Bear in mind that a handwritten will there's typically not recommended if you have any other options. More often than wheels that are drafted with the assistance of computer software or an attorney, handwritten wheels are more typically unclear, illegible, or full of outright errors that do not reflect your actual wishes. If you are in a situation where a holographic will is the best, you can do then you probably should not hesitate to have the wheel drafted in your handwriting. Be sure to write the whole document in your handwriting in the sign at the bottom. However, if you have option 2 draft a will using a computer then that would be a better choice for you and your family.
Who may act as the executor of your will?
You will only become important once you pass away. At that stage, you would not be the person who would stand to divide up the property in your estate. Rather, the executor that you name within the will itself would be responsible for managing your estate through the probate process that becomes necessary. Additionally, the person will execute your wishes as far as dividing property. In some situations, it is impossible to avoid going through probate. In that case, the executor tier state will work with the probate court to pay any debts and then ultimately distribute assets to the beneficiaries named in your will.
You should be careful with who you named as the executor to your date in your will. While the person you name may be someone who is a close relative or a person that you generally trust a great deal, that does not make him or her necessarily the most well-suited to act in this capacity for you. Remember that this is a major responsibility that you aren't asking the executor with the period you do not want to put yourself in a position where your property may not get to the right persons due to your executor not being qualified or capable of filling their responsibility under your will.
This is especially true if your will has to go through probate. In that case, the probate court judge assigned to your case will likely look at the following factors when determining whether the executor you name can remain in that role until the end of your case. Number one, the executor that you named must be at least 18 years old period next, he or she must be capable of performing the necessary duties of an executor. The necessary duties include meeting certain deadlines of the probate process, communicating with creditors as well as beneficiaries, and generally following the rules of the probate court. Despite their best efforts, many people are not well suited to act in this kind of role.
next, the person you name must never have been convicted of a felony. In general, the court was then determined the person is a suitable executor and would issue letters, testamentary to your executor, to follow through with the business of paying any creditors and distributing your assets once all creditors and debts have been paid. You should think hard about the person you were naming as your executor before you do so. While you have the chance, it would be wise to talk to this person to make sure they understand the responsibilities of being an executor and to determine whether this person is comfortable fulfilling that obligation.
On a practical level, it makes a lot of sense for you to name a person who lives close by to be your executor. The time and expense it would take for someone to travel a great distance to be able to access your will and begin the distribution or probate process would mean that someone who lives far away would probably not be well suited to step into this role. Someone who lives outside the state of Texas would need to appoint someone to act in their capacity as executor known as a resident agent. This person would accept paperwork and generally handle the day-to-day business matters associated with your estate due to there being a resident of Texas.
How can you take back or change aspects of your will?
Like anything else in life, the circumstances surrounding estate planning for your life may change over time. Beneficiaries die or beneficiaries change, and you may not want to have that person receive property of yours based on those changes. Or some new beneficiary may come into your life and as such, you would want to change your will to allow that person or entity to be able to receive property. Whatever the case may be, you need to know that it is possible to update a will over time let's discuss how you would go about terminating a will or changing the document in some regard.
In most circumstances, it is perfectly acceptable to change or eliminate a will at any point before your death. The most simple way to eliminate your will would be to destroy it. This may mean putting it through the shredder or simply throwing it away. Many people take advantage of either of those two options or will burn the document to be safe so that it could not be put back together.
The next step would be to create a new wheel. Any will that you create which is dated later than a former will becomes the will that is valid and enforceable in court. At the beginning of your will, it is commonplace to include language stating that any prior versions of your will are hereby revoked. to be on the safe side, even if you include language like this in your will it would be wise to simply destroy any older copies so that there is no confusion about which version of the will is valid. Remove any doubt and you can move on to the next phase of your life.
It is possible to make changes to your will rather than revoke it completely if the changes are relatively minor. Relatively minor changes to a will can be accomplished with a codicil. A codicil is a legal document that revises a will. Keep in mind that the requirements to be effective when it comes to a codicil are the same as for the will itself. You must be of sound mind when creating the codicil and you're signing of it must be done in front of two witnesses.
As we talked about with a handwritten will, codicils can be tricky and should generally be avoided. The reason for this is that codicils tend to accumulate over time and it can be difficult to tell what portions of the original will are still valid and which portions you intended to be overwritten by the console. The thing about a codicil is that it can add length to the will in terms of additional pages. The more paperwork becomes difficult for you and your executor to sort through. As a result, it may be better in your circumstances simply to revoke your prior will and draft a new one. This is especially true currently with technology and computers making the drafting of a will a relatively simple process.
How is probate handled in Texas?
Probate is defined as a legal process of gathering assets for a deceased person and then having them distributed to the beneficiaries or heirs of that person. If you do have a will then the terms of that will be followed assuming that it is a valid will. However, if you die without a will then the laws of intestacy in Texas will come into play and a probate court judge would divide your property out of your estate according to those laws. The reason why a court gets involved is that this makes it easier to answer questions and avoid disputes that may arise between family members or potential heirs.
Once the court validates your will then the executor of your will goes about the business of distributing property. In the alternative, the court would need to appoint a representative to fulfill the wishes of the court in terms of dividing your property. The executor or representative will identify what assets you own and what debts you owe and would contact the appropriate parties to notify them that you have passed away. The first step for your executor or representative would be to pay debts that you owe out of your estate. Finally, once all debts are paid the executor would distribute property to your beneficiaries according to the terms of your will. The decisions of the probate court judge as far as how your property should be divided in the event you do not have a will should be followed by the representative.
Having the assistance of an experienced estate planning or probate attorney during this process can be invaluable. Contact our law office today if you have questions about anything you have read in today's blog post or are interested in learning more about the services, we can provide to you and your family regarding the drafting of a will or any other estate planning subject.
Questions about the material contained in today's blog post? Contact the Law Office of Bryan Fagan
if you have any questions about the material contained in today's blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed estate planning or probate law attorneys. offer free of charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas estate planning law as well as about how your family circumstances may be impacted by the filing of a probate case or other estate planning matter.