For a Will to be valid in Texas, the person creating the Will must be 18 years or older, he must have “sound mind” at the time he executes the Will, and the Will must be signed with the required formalities under Texas law.
Sound Mind
Under Texas law, there is a five-part test for “sound mind”:
- Sufficient ability for an individual to understand that he is executing a Will;
- Sufficient ability to understand the effect of executing a Will;
- The capacity to know “the objects of his bounty” (surviving family members);
- The capacity to understand the nature and extent of one’s property; and
- Sufficient memory to collect in one’s mind the elements of the business to be transacted to form a reasonable judgment as to them.
Signed with Required Formalities
To be valid in Texas, a Will must (1) be signed by the person who created the Will or by another person at his direction and in his presence; (2) witnessed by two or more individuals who are over fourteen; and (3) the witnesses must sign the Will in the presence of the person creating the Will.
Holographic Will
A valid Will in Texas is also one that is entirely in the handwriting of the person making the Will and signed by her (or another at her direction and in her presence). This type of Will is also known as a “holographic will.”
The Self-Proving Affidavit
The purpose of self-proving affidavit is to simplify the process of proving the validity of the Will in court following death. A self-proving affidavit is prima facie evidence that the Will was executed with formalities required by law. In the absence of other evidence, no further proof of the execution is necessary to probate the Will. Without the self-proving affidavit, either one of the witnesses to the will signing or two witnesses familiar with the handwriting of the testator must appear in court to prove up the validity of the Will. While a self-proving affidavit is not necessary to create a valid Will, it simplifies the probate process after death.
This article covers the base requirements for a valid Will; however, just because a Will is valid under Texas law, does not mean that it is effective to carry out the intent of the testator (the person creating Will). Executing a Will is but one element of the drafting process.
Questions about Wills in Texas? Contact us.