Is Your Will Valid?

Her husband died a couple of months ago. She found what appeared to be a Will in his desk drawer. He had typed it up, signed it, and tucked it away for safe keeping. He likely thought he had his bases covered.

He was wrong. Although the Will outlined how he wanted his property distributed after he died, it did not comply with the Texas statutory requirements for a valid Will.

As a result, his property will pass according to the terms of the Texas intestacy statutes which provides that if a married person who doesn’t have any children dies without leaving a Will, and is survived by his parents, his spouse will only inherit a 50% interest in real estate he owned before marriage, with his parents inheriting the other half.

So rather than inheriting all this real estate as he wanted, his wife will have to share ownership in that property with her estranged in laws.

If you’re going to go through the trouble of dictating how you want your property distributed after you die, it is really important that you follow all formalities necessary to make a Will valid; otherwise, all your efforts will be for naught.

Testator Legal and Testamentary Capacity

To be valid, the Will must identify the testator and demonstrate that the testator had testamentary capacity and testamentary intent.

To establish testamentary capacity, Section 251.001 of the Texas Estates Codes requires that the testator is over 18 years old, lawfully married, or a member of the armed forces and that the testator is of sound mind. Being of sound mind means that testator must be able to understand the business in which he is engaged, the effect of making a Will, the nature and extent of his property, the persons who are the natural objects of his bounty, and how all these elements relate form an orderly plan for disposing of his assets.

Testamentary intent is established if the testator intends to make a revocable disposition of his property to take effect after he dies. It can be established by labeling the document a Will and indicating how property should be distributed after death, as long as it is signed without compulsion or duress.

Will Must Be In Correct Form

To be valid, a Texas Will must also be in the correct form. Texas recognizes two types of written Wills.

A Holographic Will is a handwritten Will. To be valid, it must be completely in the handwriting of the testator and signed by the testator. There is no requirement that witnesses sign a holographic Will.

An attested Will is a Will that is not wholly in the handwriting of the testator. It is usually typed. To be valid, it must be signed by the testator, or another person at his direction and in his presence, and also signed by two credible witnesses. If it is not signed, or simply signed by the testator, as in the example above, it is not a valid Will.

A Cautionary Tale

The situation above illustrates the benefits of having a lawyer guide you through the estate planning process rather than doing it on your own.

Had the deceased husband contacted an attorney, the attorney would have explained the statutory requirements of a valid Will to him and given him instructions on how to sign his documents in compliance with the statutes so that his wishes could have been carried out.

A qualified attorney is not just a document preparation service, but a trusted counselor who can advise you on the best way to protect your family, and preserve and distribute your assets in the manner you choose. One of my clients explained recently that he wanted the advice of a lawyer because “I don’t know what I don’t know.”

Yes, it will cost more to have an attorney prepare your estate plan. But the costs and consequences of an invalid Will can be significant. Isn’t the extra cost worth your peace of mind?

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