What Is a Legal Will in Texas?

By Joseph Nicholson

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.

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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.

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Are Holographic Wills Legal in the State of Tennessee?
 

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Is a Notarized Will Legal in Massachusetts?

Massachusetts law has specific requirements for what makes a will legal in the state. These requirements include who must sign a will in order to make it valid. Although a notary may sign a will as a witness in Massachusetts, a will that is notarized but not witnessed is not valid, according to the Massachusetts Probate Code.

Louisiana Ancillary Probate Laws

Probate is the process by which property owned by a deceased person is distributed according to a will. If you are not a resident of Louisiana, but own property in the state at the time of death, a separate probate action, known as ancillary probate, will be required. Understanding and following the unique rules applicable to Louisiana will help ensure that unnecessary delays are avoided in the probate process.

States Where Holographic Wills Are Legal

Generally speaking, a will must comply with a state’s probate formalities for admission to probate. While state laws vary, probate formalities require that a will be signed by the deceased person -- called the testator -- in the presence of at least two disinterested witnesses. However, some states permit the admission to probate of a will entirely handwritten by a testator. A handwritten will, called a “holographic will,” is admissible to probate even if no witnesses actually saw the testator sign.

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