In Texas, there are specific requirements that must be met for a will to be considered valid. These requirements are necessary to ensure that the wishes of the deceased are carried out according to his or her desires. If these requirements are not met, the will may not be legally recognized and may not be enforced.
What are the requirements for a valid will in Texas
For a will to be considered valid in Texas, it must meet the following requirements:
1. The will must be in writing.
This can be typed or handwritten. If handwritten, it must be entirely in the handwriting of the person making the will (called a testator).
2. The will must be signed by the person making the will.
3. The person making the will must be eighteen or older.
4. The person making the will must be "of sound mind."
This means that the person must be mentally capable of making decisions and understanding the consequences of those decisions. There are a few things that can indicate that a person is not of sound mind. If the person is experiencing dementia, for example, or if he or she is under the influence of drugs or alcohol at the time of making the will, this may suggest that he or she was not mentally capable of making a sound decision.
5. The person making the will must have "testamentary intent."
This means the person making the will has a desire to make a will and to leave assets to specific individuals or organizations after death. This intention must be clearly stated in the will.
If the will is typed it must also:
6. The will must be attested to and signed by two witnesses who saw the person making the will actually sign the will.
7. The witnesses must sign the will in the presence of the person making the will.
What is a self-proving affidavit in Texas?
It is a good idea to include a "self-proving affidavit." A self-proving affidavit is a statement signed by the testator and witnesses that say they witnessed the testator signing the will, the testator is over eighteen and the witnesses (at least in Texas) are over fourteen. While not required to make the will valid, it makes the probate process a lot smoother. The purpose of the self-proving affidavit is to avoid having to hunt down the witness after the testator dies. Essentially, the self-proving affidavit has the witness makes statements that would they would have otherwise had to make in the probate hearing before the court. If the will does not have a self-proving affidavit, the witnesses to the will may have to testify in court about what they saw when the will was signed. This can be a time-consuming and expensive process, and it is often easier to just have a self-proving affidavit. While the will itself doesn't need to be notarized, the self-proving affidavit must be notarized to be effective.
In Texas, the self-proving affidavit does not have to be signed at the same time the will is signed. it can be signed at a later time, during the lifetime of the person making the will, as long as it is signed by the same witnesses, the testator, and it is notarized.
What happens if the will is not valid
If a will does not meet the requirements for a valid will in Texas, it is invalid - that is, it is not a will. This means that the deceased's wishes are not carried out according to his or her desires. If the will is invalid, the assets of the deceased will be distributed according to the intestate succession laws of Texas. This can result in assets going to people that the deceased did not intend to receive them. Therefore, it is important to make sure that all requirements for a valid will are met in order to ensure that one's final wishes are carried out.
What are Texas' intestate succession laws?
If a person dies without a valid will in Texas, his or her assets will be distributed according to the intestate succession laws of Texas. This can result in assets going to people that the deceased did not intend to receive them. The intestate succession laws of Texas are pretty complex, so it is important to understand them if you are someone who wants to make sure their assets are distributed the way they want them to be after death.
Basically, the intestate succession laws determine who will receive a deceased person's assets if he or she did not have a valid will. The laws are based on family relationships - for example, the spouse of the deceased will usually receive the largest share of the assets, followed by children and then parents. If there is no spouse or child of the deceased, then the assets will go to other family members in accordance with the intestate succession laws.
Who inherits exactly would depend on whether the asset was separate property or community property. Whether the asset is real property or personal property, and whether the deceased had children with a surviving spouse or someone else. As mentioned, it can be pretty complex. A person that has remarried must get their will or trust in place to make sure their assets goes to who they want to after they die.
One important thing to keep in mind is that these laws apply only to assets that are in the name of the deceased at the time of death. So, for example, if a person had a bank account in his or her name alone and that person died without a valid will, the bank account would pass to the beneficiaries named in the intestate succession laws. However, if the person had a life insurance policy that named a different beneficiary, the life insurance policy would not be affected by the intestate succession laws and would pass to the named beneficiary.
In short, it is important to have a valid will to ensure that your assets are distributed according to your wishes after you die. If you die without a valid will, your assets will be distributed according to the intestate succession laws of Texas, which may not be what you want. Therefore, it is important to make sure that all requirements for a valid will are met in order to ensure that your final wishes are carried out.
If you or a loved one needs help putting a will in place, or if you need help figuring out what's next after a loved one dies, we can help. Call us today at 214-292-4225