Texas estate planning: Executing a valid will in the Lone Star State

To be legally binding, certain formalities required by Texas law must be followed when a will is executed.

While there are other components to a complete estate plan, the first thing that comes to mind when beginning to plan how property will be disposed of at death is to write and execute a will. Texas law has strict rules about how to make sure a will is valid and enforceable.

No matter how much your assets are worth, it is important to seek legal counsel for advice and assistance with an estate plan, even if it is a simple one, that includes carefully writing and executing your will - the legal document in which you dictate who is to receive title to your personal property and real estate at your death.

Texas statute provides that a will must be in writing; signed by the testator (the person writing the will) or by someone else if directed to do so by the testator and in the testator's presence; and witnessed by at least two "credible" witnesses at least 14 years old who put their signatures on the will in the testator's presence. (A Texas court may find a witness to be credible because he or she was not named as a beneficiary in the will.)

(An exception to these requirements is that a holographic will - one written entirely in the testator's handwriting - may in certain circumstances also be found to be valid.)

Any changes the testator wants to make to the will after its execution would have to be made in a codicil (modifying document) that is also executed according to the requirements of the will itself, or by properly executing an entirely new will. For example, after properly executing a will, if the testator manually crosses out provisions or inserts new language into the will, those changes will not take legal effect, even if the testator initials the attempted changes.

When someone dies, his or her will is submitted to Texas state court to be probated, which means that the court must determine whether the will was validly executed and if so, order its terms carried out, including the transfer of property as directed. The court will carefully consider all relevant evidence to determine whether all of the requirements for valid execution were followed. The court must find the will to be invalid if the requisite formalities were not observed, in which case the testator's instructions would not be enforceable in court.

In that situation, if there were an older valid will, it could be probated, but if not, the testator's assets would pass under Texas intestacy laws, which spell out who the heirs are if someone dies without a will. Because those who would inherit if the testator died intestate without a will are not necessarily the same as those he or she would have chosen is another crucial reason to follow Texas rules for will execution very carefully.

Even if the basic execution requirements of a will were adhered to, the will could still be contested in court if other conditions may have been present. For example, the testator may not have had the requisite testamentary or mental capacity to understand what he or she was doing when signing the will or the will could have been the result of fraud, forgery or undue influence, or revoked before the testator's death.

The Houston-based lawyers at Hayes & Wilson, PLLC, assist clients with the full array of estate planning services, including wills, trusts and estate administration.