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A Last Will and Testament is one of the most important legal documents a person can create during his or her lifetime. If a person dies without a Will they are said to have died “intestate” and state laws will determine how and to whom the person’s assets will be distributed.
If a person dies without a Will the beneficiaries can not dispute the court’s distribution of that person’s estate under the intestacy laws. Even if that person expressed different wishes verbally during their lifetime the statutes control the distribution. With a valid Will, a person can legally determine how their property will be distributed… and to whom.
A Will must meet the legal requirements set forth by the state in order for it to be valid. Most states will also accept a Will that was executed in another state if the document is a valid Will under that state’s law. The general requirements for a valid Will are usually as follows: (a) the document must be written (meaning typed or printed), (b) signed by the person making the Will (usually called the “testator” or “testatrix”, and (c) signed by two witnesses who were present to witness the execution of the document by the maker and who also witnessed each other sign the document.
In Texas, the laws regarding the valid execution and witnessing of a Will are set forth in the Texas Probate Code, Chapter 4 Execution and Revocation of Wills, Sections 57 through 61.
In Texas, any person eighteen (18) year of age, or any married minor or minor in the Armed Forces, and of sound mind may make a Will. (See: Section 57) “Sound mind” generally means someone who has not been deemed incompetent in a prior legal proceeding.
A Will must be in writing, signed by the testator and by two witnesses. If the testator cannot physically sign his name he may direct another party to do so. Each witness must sign the Will in the testator’s presence. (See: Section 59)
In Texas, a Will must be witnessed by two credible witnesses above the age of fourteen (14). (See: Section 59) Generally, it is recommended that the witnesses to the Will be “disinterested”, which means that they are not a beneficiary of the Will. In Texas the signing of a Will by an interested witness does not invalidate the Will, but if an interested witness is one of only two witnesses any gift to the witness is void. An exception is if the witness would be a beneficiary under intestacy, then the witness may take the gift up to the value of their intestate share. (See: Section 61)
If a Will’s authenticity is unchallenged it may be probated in a simplified procedure if it has been self-proven. Witnesses to a self-proven Will are not required to testify in court because the court automatically accepts a self-proven Will as authentic. To self-prove a Will the testator and the witnesses must swear in an affidavit before a notary to the authenticity of the Will. The affidavit should be part of the Will or attached to it. (See: Section 59)
Hopefully these guidelines have helped make your estate planning decisions easier. For information regarding your specific circumstances you should contact an local wills attorney to discuss your specific legal situation.