Wills Resource Center

Texas law recognizes three types of wills: typewritten, solely in the decedent's handwriting, and oral. A person who will's property ("Testator") must adhere to very specific legal requirements for the will to be considered valid. In addition, for any will to be valid, the testator must comply with each of the following: 1) testator must be at least 18 years of age, married, or serving in the armed forces; 2) not forced or deceived to make the will; 3) intend to make transfer upon death; and 4) be of sound mind at the time the will is prepared. A carefully written will nominates a guardian for minor children, distributes assets in a manner desired, and may reduce estate taxes.

Typewritten wills (will type #1)

Typewritten wills must be in writing, signed by or at the direction of the testator in his presence, and attested by two credible witnesses above the age of 14 in the presence of testator. This type of will is typically drafted by an attorney and is typically best in that it includes provisions which may otherwise be forgotten in one of the other will types.

Holographic wills (will type #2)

Holographic wills are those wills that are made entirely in the testator's handwriting. Such wills are valid. However, if any part of the will is typed or written in another person's handwriting, the entire will is invalid unless the portions not in the testator's handwriting are not necessary to complete the will.

Nuncupative (Oral) wills (will type #3)

An oral will is only effective as to personal property, never real estate. To be effective, the oral will must be made during the decedent's last sickness, at his home or other location where he has resided for at least 10 days preceding the date of the will except when the decedent died after being taken away from home and before returning. The will is ineffective to pass more than $30.00 unless three credible witnesses were present when the testator's intent was spoken. Further, such will may not be probated more than 6 months following the death of the testator unless the testimony was reduced to writing within six days after the will was made.

Self proved wills

A will must be proved to be valid before it can be admitted to probate. This will require the testimony of one of the original witnesses or two disinterested persons who can verify the decedent's handwriting. However, type written wills and holographic wills can be self proved by use of an affidavit acknowledging certain matters. The requirements for self proving affidavits for typewritten and holographic wills are different from one another. A self proved will is presumptively valid and witness testimony is typically not required.

Wills followed by divorce

Texas law provides that a will followed by divorce is to be read as though the former spouse predeceased the decedent. However, at this time, there are no definitive cases on former spouses being placed in a trust while the decedent was married. The most prudent course of action is to revise any trust and revise the will in light of the new testamentary intent.

Children born or adopted after creation of a will

A child born and not mentioned in the decedents will is subject to Section 67 of the Texas Probate Code. Accordingly, the first question is whether the decedent had any children at the time the will was written. If YES, then was there provision made to the other children? If NO provision was made for any other children, then the child born after the will was created is entitled to a portion of the separate and community property of the decedent the child would have been entitled to pro-rata with siblings with the assumption that the decedent owned only the property not given to the child's parent.

If provision was made for other children, then the child born after the will shares in what was provided to the other children of the decedent as though all children shared equal portions.

If no child was born at the time the will was created, an after born child is entitled to a portion of the separate and community property of the decedent the child would have been entitled to pro-rata with siblings with the assumption that the decedent owned only the property not given to the child's parent.

To obtain further information on wills within the context of Estate Planning, go to my Estate Planning Resource Center. To obtain further information on wills within the context of Probate, go to my Probate Resource Center.

Information provided in this website is a courtesy, should not be relied on, does not create an attorney-client relationship, and is not a substitute for actual legal advice from an attorney you have retained. To schedule an initial consultation with Watson & Maynez, P.C. to discuss your matter and mutually determine if retention is appropriate, call today.

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