Texas Will: What Makes a Will Valid?

A last Will and Testament in Texas is a document where the individual makes decisions as to who is going to own and control his property after his death; it's a testamentary disposition of one's property. So, what makes a Will valid in Texas?

To answer that question, we interviewed R. David Weaver, a Texas lawyer with over 25 years experience whose practice offers a wide range of legal services including estate planning and probate. According to Weaver:

In Texas, the only thing that is required in order to have a valid Will is that it be in writing and that it be signed by the testator in the presence of two witnesses. It can be handwritten, it can be typed, it can be in hieroglyphics, it can be in Chinese or whatever - as long as it's subject to ascertainment through translation or otherwise and as long as it is clear with regard to the intention of the testator. There are additional proof problems that arise, but the proof problems do not create an invalid Will.

In fact, Weaver told us that witnesses don't necessarily even have to sign the Will, as witnesses, in order for it to be a valid Will. You just have to have two witnesses who say, "Yes, I saw him sign the will."

Are video tapes allowed in Texas?

In Texas, you can admit a video tape into probate, but it is not binding. Weaver explained, "A person can do a video tape and essentially read his Will and then state supplemental comments on it, but the supplemental comments are not binding, but may be used a clarification of intent. It may go to prove the person's testamentary capacity and things of that nature, but the actual document is what is submitted into probate."

What is a Texas 'Self Proving Will' in?

Weaver says that the thing that really streamlines and makes the probate process easier - which is one of the primary purposes for doing the Will -is to create a document that is self-proving. He explained the concept, "With a self proving Will, we don't have to have witnesses come to the court to testify that, 'Yes, this is my signature, Yes, I saw this person sign the Will, Yes, this person was of sound mind and this person was over the age of 18 and I was over the age of 14 at the time this all occurred.'"

"In other words, what we do with the Wills in Texas is prepare what's called a self-proving affidavit where both the testator and the witnesses basically swear by affidavits all of the things that are necessary to prove the validity and the genuineness of the Will. It doesn't go to the validity of the Will itself, because you could have a self-proving affidavit and the Will would still be invalid for various reasons or still be subject to challenge. What a self-proving affidavit does is it eliminates the need to establish the genuineness of the document."

More detail is better

The more detail that you put into your Will, the more certain your intentions are. However, in order for the Will to be valid, it does not require even the specific designation of beneficiaries. Weaver provided the following example:

You can say, 'to my beneficiaries' or 'to my heirs-at-law' or whatever. In fact, it could just use the word 'heirs' and the courts will interpret that to mean one's heirs-at-law and we'll go back to the probate code to determine who those are. So, if an executor is not named, then it would be up to someone who has an interest in the estate to be appointed as the executor. It doesn't necessarily have to be a beneficiary; it can even be a creditor who can make an application to the court.

Since Weaver's practice focuses in Texas estate planning, he was able to provide us with general details from actual cases in which he's involved. He continued, "We're actually involved in a case right now in which the decedent did not have a will and a creditor has filed to be the administrator of the estate simply because the single heir of the estate has refused to offer to do the administration. In this case, there is real property involved and the creditor is going through an alternative process to get title transferred to it."

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