Wills

Requirements of a Valid Will

Do Typewritten Wills Have To Be Witnessed If They Are Notarized?

by Rania Combs

Her mother signed a typewritten Will six months before she died. The Will had the correct formatting and included all the appropriate sections. It clearly identified all her mother’s property and directed the executor to distribute the property to her mother’s living children.

After her mother died, she contacted a lawyer to assist with probate. The lawyer reviewed the Will, and told her it could not be admitted to probate.  Although her mother signed the Will in front of a notary, no witnesses signed the Will. As a result, it did not meet the requirements of a valid Will in Texas.

This surprised her. Why was the notary’s official signature not sufficient to make the Will valid?

She contacted me for a second opinion on whether typewritten wills have to be witnessed if they are notarized.

What Makes a Typewritten Will Valid?

To be valid, a testator must sign a typewritten Will in the presence of at least two credible witnesses over the age of 14.

If a testator signs a typewritten Will in front of a notary, but two credible witnesses over the age of 14 do not sign in in the testator’s presence, it will not be valid.

A testator has the option of adding a self-proving affidavit to the Will. A self-proving affidavit is signed by the person making the Will and two witnesses, and the notary public.

When a court admits a Will to probate, the self-proving affidavit substitutes for in-court testimony of witnesses about the validity of the Will, which saves considerable time and expense. However, the absence of a self-proving affidavit will not invalidate the Will.

DIY Planning Is Fraught With Risk

Her mother’s primary objective in writing her Will was ensuring that the children of a deceased child, from whom she was estranged, did not inherit any portion of her estate.

When she signed her Will in front of a notary, she likely thought she had covered her bases. Unfortunately, because she did not know what she didn’t know, the Will is not valid. Therefore, the Texas intestacy statutes will control, which means that her estranged grandchildren will inherit part of her estate.

The situation above illustrates the benefits of having a lawyer legal advice. A lawyer would have explained the requirements of a valid Will,  ensured that the Will was in the correct form, and made sure she signed the Will properly.

Yes, it costs more to consult an attorney. But the costs and consequences of an invalid Will can be significant.

Isn’t the extra cost worth your peace of mind?

This article was originally published on July 17, 2013, and updated on July 24, 2020.

 

 


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