What Is a Legal Will in Texas?

by Joseph Nicholson
    Generally, a Texas will must be in writing with at least two witnesses.

    Generally, a Texas will must be in writing with at least two witnesses.

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    A legal will in Texas is one that satisfies the requirements of the Texas Probate Code, especially sections 57 to 71. These Texas statutes describe who can make a will, what can be done with a will and the process for making a will valid. A will can be revoked under Texas law by the creation of a subsequent valid will or codicil, or by the testator destroying the physical copies of the will. And, though not required, a will can be deposited with the clerk of the testator's county of residence for safekeeping during his lifetime.

    Capacity

    A legal will can be made in Texas by anyone who is at least 18 years old and of sound mind. Individuals who are married or are in the armed forces can make a will even if not 18 years of age. A person with capacity to create a will under Texas law can do so to direct the passage of any personal or real property or to disinherit any otherwise legal heir. A will cannot, however, convey property to an attorney who supervises or drafts a will or any relative or employee of the attorney.

    Witnesses

    With one exception, a valid Texas will must be in a writing signed by the person making the will and two credible witnesses. Under Texas law, a person who is entitled to receive property under the will can act as a witness, but any disposition that person could receive will be void if the will cannot be verified at probate by at least one other credible, disinterested witness. A will can be made self-proving, however, and essentially guaranteed valid, by the execution of affidavits by the witnesses before a Texas notary.

    Holographic

    The only type of will that does not require the signature of at least two witnesses is a holographic, or handwritten, will. To be valid, though, the will must be entirely in the handwriting of the testator, which will have to be proved at probate. A holographic will can be made self-proving during the life of the testator, however, if she executes a notarized affidavit testifying that the will is in fact valid and made by an individual with the capacity to create a will under Texas law.

    Foreign Wills

    According to the Texas Probate Code, the will of a person domiciled in Texas at the time of his death but executed in any other state can be probated in Texas. The will is only valid, however, if it meets the requirements for a Texas will. If a foreign will is probated in another state, but conveys property located in Texas, the state will respect and honor the disposition of in-state property so long as the will is valid in the state in which it was probated.

    About the Author

    Joseph Nicholson is an independent analyst whose publishing achievements include a cover feature for "Futures Magazine" and a recurring column in the monthly newsletter of a private mint. He received a Bachelor of Arts in English from the University of Florida and is currently attending law school in San Francisco.

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