Texas Last Will & Testament General Statutes

by Heather Frances J.D. Google
Your will is not valid unless it meets requirements of state law.

Your will is not valid unless it meets requirements of state law.

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Your will, sometimes called a last will and testament, can give instructions to the people you leave behind, including details of who should inherit your property, who should manage your estate before it is distributed and even who you want to take care of your minor children. However, your will must be valid under Texas law before a Texas court can honor it.

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Mental Capacity

Texas law requires every person who makes a will -- called a testator -- to be at least 18 years old. If a testator is under 18, he can make a will if he is serving in the military or was lawfully married, even if he is no longer married. Texas also requires that every testator be of sound mind when the will is signed, meaning he must understand what he is doing by signing the will. Testators must be free from undue influence and must have the intent, at the time they sign the will, to distribute property upon their death.

Types of Wills

Different types of wills must meet formalities required by Texas law. Handwritten wills, called holographic wills, are exempt from some of these requirements but may be difficult for a court to interpret. An oral will is valid only if given on the testator's death bed, and it must be witnessed by at least three people if the testator is disposing of more than $30 worth of property. Oral wills can distribute personal property only, not real estate. Typewritten Texas wills must be signed by the testator, or signed by someone else at his direction and in his presence. At least two disinterested witnesses must witness the signing and sign the will in the testator's presence.

Revocation

Once a testator makes his will, he can revoke it at any time, either by physically destroying the will, making a new will or revoking the will in writing. For example, the testator can simply shred the will he wants to revoke. If the testator makes a new will, it will not revoke the old will unless it meets all the formalities required by Texas law. Special rules apply if you make a will giving property to your spouse, but you later get divorced or have your marriage annulled. In that situation, Texas law voids distributions to your former spouse and her relatives.

Community Property

Texas is a community property state, which means that most property spouses acquire during their marriage is considered community property owned equally by both spouses. Each spouse can give away only half of the community property since the other spouse owns the other half and can give away that half as he or she wishes. If the will tries to give away more than half of the couple’s community property, the surviving spouse can renounce the will and claim her full one-half of the community property or accept what she is given under the will.