Do I need to get a lawyer to make my will in Texas?
No, but… it is almost always possible to CREATE your own will in Texas; however, drafting the will does not mean that a court will recognize any and every provision in the will, it might even be thrown out entirely. The laws governing wills have changed recently (January 1, 2014) and what might have once been common wisdom could no longer be the law. Even if you are drafting your own will, it is always the best practice to have a licensed attorney review it (especially if you have a large family, or the gifts are very complicated). Even if you know exactly what you want, where you want your property to go, and to whom, there is specific language that must be included even in a handwritten will (more on this below).
Do I need a room-full of people, an old typewriter, or ink and quill to create my own will?
No, there is nothing magic about the old will that requires a big ink quill and parchment, but… you’re going to need to actually HAND write the entire document. Luckily for us, we live in the day of the computer, and yet the computer can be anonymous. This is terrible for a will. The biggest benefit of the handwritten will is that the person making the will (the testator) does not need two disinterested witnesses to be present at the time.
If you want the court (and the person trying to probate your will) to have a much easier time, you need to make sure that everyone knows that you wrote the entire document. What better way to do that than to use your own unique style of handwriting? The most important issue that can come up when getting the will through a court (probate) is authentication. The entire reason that you are able to create a will wholly in your own handwriting is that it is much easier to authenticate. With a standard will, the party trying to admit the will in court will need to have proved that the will was created when, and by whom (and yes, you can include witnesses in your handwritten will).
If you don’t have witnesses or other help, and can’t navigate the complex areas of the Texas Estates Code, you need to make use of this practice (otherwise known as a “holographic” will). Tex. Est. Codes 251.052, 251.107 (Exception for Holographic Wills) (effective January 1, 2014).
What if I have an old handwritten will, is a court going to accept that?
Yes is the short answer. The “holographic” or handwritten will has been around for quite a long time. This old practice has been losing ground in many states, but Texas still allows a handwritten will to be probated (the things given away to the loved ones) even today. However, not only is this law not uniform from state to state, but loved ones may have moved or the will may simply be too complicated. It is always best to see an attorney in this situation, or risk losing time and money.
If you have an old handwritten will — and you want to probate it. Make sure that you can actually prove that the testator was the one who wrote it. (For example, a handwriting from an old letter might be a good comparison for handwriting.) But if the handwritten will does not contain certain language (for example, “I am of sound mind,”) a court could STILL throw out the will.
If you are unsure whether the person who hand-wrote the will (the testator) was of sound mind at the time, you need to speak to an attorney. This is not the area to go it alone!
Are there magic words that I need to hand-write?
Yes. The best practice is to attach a separate document to the will (an affidavit, which is in your own handwriting) AND to mention that separate document specifically in the will (that way it won’t seem like someone is attaching it at the last minute).
In the separate document (the affidavit) the Texas Estates Code requires you to swear to the following (“testator” simply means the person creating the will for herself):
(1) the instrument is the testator’s last will;
(2) the testator was 18 years of age or older at the time the will was executed or, if the testator was younger than 18 years of age, that the testator:
(3) was or had been married; or
(4) was a member of the armed forces of the United States, an auxiliary of the armed forces of the United States, or the United States Maritime Service at the time the will was executed;
(5) the testator was of sound mind; and
(6) the testator has not revoked the will.
Do not write anything that isn’t true in the affidavit, or anything you have felt coerced into saying. If any of this seems complicated then, again, it is always the best practice to obtain the services of a licensed probate attorney. Tex. Est. Code Sec. 251.107 (eff. Jan. 1, 2014).
CONCLUSION
Remember that a handwritten will is a valid form of passing down property to loved ones and friends in Texas, but problems may arise. Do not let anyone tell you that handwritten wills are only for emergency situations, or that they are inadmissible. However, if you are fighting (contesting) the will and another party already has an attorney, you need to get your own attorney. Obviously, this article cannot cover all of the legal issues that arise when probating a handwritten will, and it is always in best practice to at least consult with an attorney over a matter like this.
When drafting handwritten wills:
(1) Watch out for property in other states or community property!
(2) Include the required affidavit in handwriting and MENTION it within the will.
(3) Do not try to go it alone when someone is fighting the will!
(4) Check old handwritten wills for information showing that the testator was of sound mind.
(5) When in doubt see an attorney!
For more information on the Texas Estates Code visit: http://www.statutes.legis.state.tx.us/Docs/ES/htm/ES.251.htm#251.052
To find an attorney using the Texas State Bar visit:
http://www.texasbar.com/am/template.cfm?section=simple_search
Or try Texas Law Help:
http://www.texaslawhelp.org
There are many guides online and in print for do-it-yourself wills but a licensed attorney can help you avoid traps (like drafting your will under the laws of a different state). This is not meant to be legal advice, just a general discussion of Texas handwritten wills.
Timothy Neal Tesch Jr.,
Texas Attorney
TEXAS APPELLATE & SUPREME COURT REVIEW 