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Making a Will in Texas

How to make a will in Texas and what can happen if you don't.

By , Attorney

Steps to Create a Will in Texas

Here's a quick checklist for making a will in Texas:

  1. Decide what property to include in your will.
  2. Decide who will inherit your property.
  3. Choose an executor to handle your estate.
  4. Choose a guardian for your children.
  5. Choose someone to manage children's property.
  6. Make your will.
  7. Sign your will in front of witnesses.
  8. Store your will safely.

Why Should I Make a Texas Will?

A will, also called a "last will and testament," can help you protect your family and your property. You can use a will to:

  • leave your property to people or organizations
  • name a personal guardian to care for your minor children
  • name a trusted person to manage property you leave to minor children, and
  • name an executor, the person who makes sure that the terms of your will are carried out.

What Happens if I Don't Have a Will?

In Texas, if you die without a will, your property will be distributed according to state "intestacy" laws. Texas's intestacy law gives your property to your closest relatives, beginning with your spouse and children. If you have neither a spouse nor children, your grandchildren or your parents will get your property. This list continues with increasingly distant relatives, including siblings, grandparents, aunts and uncles, cousins, nieces, and nephews. If the court exhausts this list to find that you have no living relatives by blood or marriage, the state will take your property.

Do I Need a Lawyer to Make a Will in Texas?

No. You can make your own will in Texas, using a good self-help product like Nolo's Quicken WillMaker programs. However, you may want to consult a lawyer in some situations. For example, if you think that your will might be contested or if you want to disinherit your spouse, you should talk with an attorney. Nolo's will-making products tell you when it's wise to seek a lawyer's advice.

What Are the Requirements for Signing a Will in Texas?

To make a will in Texas, you must be of sound mind and one of the following:

Texas law states that your will can dispose of any property you own at the time of your death and can be used to disinherit an heir. Tex. Est. Code § 251.002.

You must make your will on hard copy. That is, it must be on actual paper. It cannot be on an audio, video, or any other digital file. (Although, see "Can I Make a Digital or Electronic Will?," below.) Type and print your will using a computer, or you can use a typewriter. Texas does permit handwritten wills (Tex. Est. Code § 251.052), but they are usually not a good idea.

How Do I Sign My Texas Will?

To finalize your will in Texas:

  • you must sign your will in front of two witnesses, and
  • your witnesses must sign your will in front of you.

Your witnesses must be at least 14 years old and write their signature in their own handwriting. Tex. Est. Code § 251.051.

A holographic will must be wholly in your handwriting, but it doesn't require witnesses. (Tex. Est. Code § 251.052)

Do I Need to Have My Will Notarized?

No. In Texas, you do not need to notarize your will to make it legal.

However, Texas allows you to make your will "self-proving" and you'll need to go to a notary if you want to do that. A self-proving will speeds up probate because the court can accept the will without contacting the witnesses who signed it.

To make your will self-proving, you and your witnesses will go to the notary and sign an affidavit that states who you are and that each of you knew you were signing the will. (Tex. Est. Code § 251.104). You can do this at the same time as making your will or anytime during your and the witnesses' lifetimes. (Tex. Est. Code § 251.103). Texas law also allows you to make a holographic will self-proving during your lifetime. (Tex. Est. Code § 251.107).

Should My Will Name an Executor?

Yes. In Texas, you can use your will to name an executor who will ensure that the provisions in your will are carried out after your death. Nolo's Quicken WillMaker produces a letter to your executor that generally explains what the job requires. If you don't name an executor, the probate court will appoint someone to take on the job of winding up your estate.

Can I Revoke or Change My Will?

In Texas, you may revoke or change your will at any time unless you have entered into a contract not to change your will. You can revoke your will by:

  • destroying or canceling all or part of your will
  • ordering someone else to destroy all or part of your will in front of you
  • making a new will that says it revokes the old will, or
  • making another writing that says it revokes the will while following the same formalities you used to make your original will (see above). Tex. Est. Code § 253.002.

If you and your spouse divorce (or if a court determines that your marriage is not legal), Texas law revokes any language in your will that leaves property to your spouse or names your spouse to be your executor. This rule also applies to any relative of your spouse who is not your relative. This rule does not apply if you specifically state in your will (or divorce decree or contract relating to the division of your property) that divorce should not affect the provisions in your will. Tex. Est. Code § 123.001. If you have any concerns about the effects of divorce on your will, see an estate planning attorney for help.

If you need to make changes to your will, it's best to revoke it and make a new one. However, if you have only very simple changes to make, you could add an amendment to your existing will—this is called a codicil. In either case, you will need to finalize your changes with the same formalities you used to make your original will (see above).

Can I Make a Digital or Electronic Will?

In a handful of states, you can make a legal will digitally—that is, you can make the will, sign it, and have it witnessed without ever printing it out. Although such electronic wills are currently available in only a minority of states, many other states are considering making electronic wills legal. Texas currently doesn't allow e-wills, but that may change in the future.

Where Can I Find Texas's Laws About Making Wills?

You can find Texas's laws about making wills here: Texas Statutes Estates Code Title 2 Estates of Decedents; Durable Powers of Attorney Subtitle F Wills Chapter 251 Fundamental Requirements and Provisions Relating to Wills.

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