Requirements of a Valid Last Will and Testament
Simply having a valid Last Will and Testament means we’ve accomplished some “Estate Planning”.
If we look at the term “Estate Planning”, it may sound complex and even fancy to some extent.
Here’s the reality: It can be complex but, in many cases, it’s not.
All we’re actually talking about is getting our affairs in order for the ease, and peace of mind, of our families in case something tragic were to happen to us.
Can Estate Planning be complicated and technical in certain situations? Of course.
However, again, it’s also a term that’s properly used when we’re simply discussing having a Will.
Without having a Will the probate courts decide, essentially, where our stuff goes and to whom it goes to based on the Texas Probate Code.
I anticipate that many of us have the mindset that we never want the government determining where our property goes.
Let’s control what we can control.
One way to do this is by having a valid Will in place.
A valid Will tells the probate court exactly what our wishes are, where we want our property to go, and, basically, who gets what.
For a Will to be valid each state has their own requirements, including Texas.
So Will requirements in Texas will be what we’ll be focusing upon today.
Let’s get a little technical and go over some of the procedural requirements, then we’ll come back and discuss what it all means in plain English.
As we mentioned, creating a Will is an important step in protecting your family and property, as your Will shall dictate how and to whom your assets will be distributed after your death.
However, you must ensure that our Will meets the requirements under Texas law in order for it to be recognized and upheld by Texas courts.
To create a valid Will under Texas law, the “testator”, which is simply the legal term for the person creating the Will, must meet a handful of requirements:
(1) Age: A testator must be at least 18 years of age. If the testator is under 18, their Will may still be valid if the testator (a) is, or has been, lawfully married OR (b) is a member of the U.S. armed forces;
(2) Capacity: The testator must be of “sound mind” and fully aware of what property they own and what they are agreeing to in their Will;
(3) Testamentary Intent: To have a valid Will, the testator needs to have intended to make a Will—in other words, the testator needs to intend for the document to determine what happens to their property after they die. That sounds obvious, but there have been cases where the language in the Will has been vague or ambiguous — so we need to make sure that when we draft our Will the language is crystal clear.
(4) Signature: A valid Will must be signed by the testator, and signed by at least two (2) witnesses (NOTE: It’s always a good idea to make sure that the witnesses aren’t anyone that’s getting anything in your Will). Make sure the witnesses — to use an old saying — “don’t have a dog in the hunt”.
5) Self-Proving Affidavit: This is a one-page document that we’ll get witnessed and notarized at the same time as our Will. This document, in many circumstances, avoids our witnesses from ever having to appear at a probate court hearing.
Quite simply, proper planning as to where we want our estate to go (whether it be real estate, personal property, money in our checking account, or even our stamp collection…) can be accomplished by drafting a well-crafted Will.
In other words, we want to make sure OUR intentions regarding our estate are followed and not the government’s.
Not having a Will defaults us into a situation where state law dictates where our stuff goes. Having a Will deemed as invalid (for whatever reason) by a court does the same thing.
Neither one of these situations are what we want.
Once again, I think most of us would agree that we want OUR testamentary intent to be followed, not the state’s.
Specific planning, coupled with making sure the Will is executed properly according to Texas requirements, will give us peace-of-mind that when the day comes that our Will is probated there will be minimal burdens on our loved ones and the laws of the state will not come into play in overriding our wishes.