Wills

When asked who needs a Will in Texas, the simplest answer can be found in the Texas Probate Code, Sec. 57. Titled, WHO MAY EXECUTE A WILL, says that (e)very person who has attained the age of eighteen years, or who is or has been lawfully married, or who is a member of the armed forces of the United States or of the auxiliaries thereof or of the maritime service at the time the will is made, being of sound mind, shall have the right and power to make a last will and testament, under the rules and limitations prescribed by law.

What does a SIMPLE WILL need to have for the Court to accept it?

WILL VALIDITY-

FOUR MAIN REQUIREMENTS:

  • Legal Capacity
  • Testamentary Capacity
  • Testamentary Intent
  • Formalities

LEGAL CAPACITY-

AGE – Minimum 18 years of age, unless married as a minor or emancipated

SOUND MIND – (The Testator)

  • Comprehended the action being taken and its effect,
  • Knew the nature and extent of their property,
  • Recognized the natural objects of their bounty,
  • Simultaneously held the first three elements in their mind long enough to make a reasonable judgment regarding property disposition.

COMPREHEND ACTION AND ITS EFFECT-

The testator must appreciate that they are making arrangements regarding who becomes the new owner of their property upon their death.

KNOW NATURE AND EXTENT OF PROPERTY-

The testator must know, or be able to understand, the general nature and extent of their property.

However, the testator does not need to be able to provide a precise accounting of each asset owned and its value.

RECOGNIZE NATURAL OBJECTS OF BOUNTY-

The testator must know, or be able to understand, the individuals who would “naturally” benefit from their death.

Thus, a Testator needs to know the identity of their presumptive heirs, such as a spouse, children, parents, grandchildren, and siblings.

Remember that a Testator has no obligation to leave any property to these individuals.

TESTAMENTARY INTENT-

The testator must intend that the very instrument the testator executed will serve as the testator’s will; that is, the document that states the testamentary desires to be effective upon death.

ATTESTED WILLS-

Wills that are witnessed are the most common type of will. An attested will must be:

  • In writing,
  • Signed by the testator, and
  • Witnessed

IN WRITING-

An attested will must be in writing

Although wills on unusual surfaces and marked with untraditional implements MAY be legally permitted, wills should be prepared with

Conventional materials such as 8 ½” x 11” paper and Non-Erasable ink.

SIGNED BY THE TESTATOR-

The signature function serves two main functions.

It connects the will with the testator so there is some assurance that the testator actually approved the instrument.

The testator’s signature gives the document an aura of finality, that is, that the testator was finished with the instrument and that it reflects the testator’s final wishes.

WITNESSED-

Texas requires at least two witnesses

Many states do not limit the legal capacity of a witness because of age

Witnesses must “competent and credible” and therefore, be capable of giving testimony in court

Witness must intend to give validity to the document as an act of the testator.

SELF – PROVING AFFIDAVIT-

A notarized statement by the testator and the witnesses affirming under oath that all the requirements of a valid will have been satisfied.

Texas permits that this affidavit substitute for the in-court testimony of the witnesses when the testator’s will is probated.

The affidavit raises a presumption that the matters stated therein are true.

FORMALITIES-

Ceremony

  • Establishing Testamentary Capacity
  • Establishing Testamentary Intent
  • Conducting Will Execution
  • Conducting Witness Attestation
  • Completing the Self – Proving Affidavits

Can I revoke my Will? Yes, you can. The Texas Probate Code, Sec. 63, titled, REVOCATION OF WILLS states that (n)o will in writing, and no clause thereof or devise therein, shall be revoked, except by a subsequent will, codicil, or declaration in writing, executed with like formalities, or by the testator destroying or canceling the same, or causing it to be done in his presence.

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