Last will and testament

Estate Planning · Wills

What Texas requires for a valid will.

• The person making it must be at least eighteen (with limited exceptions), of sound mind, and acting with testamentary intent.
• It must be in writing and signed by the testator, or by another person at their direction and in their presence.
• It must be attested by two credible witnesses over the age of fourteen, who sign in the testator's presence.
• Alternatively, Texas recognises a holographic will — one wholly in the testator's own handwriting and signed by them, with no witnesses required.

The self-proving affidavit is the part that saves money

A will can be made self-proved by a sworn affidavit signed by the testator and witnesses before a notary. Without it, the executor has to locate a witness years later and produce them in court to prove the will — a small formality at signing that becomes a genuine problem at probate.

Independent administration: the most valuable words in a Texas will

A will that appoints an independent executor and directs that no action be had in the probate court other than proving the will and filing an inventory keeps the administration out of court supervision. The alternative — dependent administration — requires court permission and a bond for routine steps and costs many times more. This single provision is the main reason Texas probate has a reputation for being manageable.

What a properly drafted will handles

• Who inherits, in shares, with what happens if a beneficiary dies first.
• Guardians for minor children, and a trust so that a child does not receive everything outright at eighteen.
• Specific gifts, and what happens if the item no longer exists at death.
• Debts, taxes and expenses, and which part of the estate bears them.
• The homestead, and the rights a surviving spouse holds in it regardless of what the will says.
• A no-contest clause where a challenge is genuinely foreseeable, drafted with an understanding of how Texas courts treat them.

What goes in the document

• Distribution instructions for property, savings, vehicles, personal effects and anything with sentimental weight — the items families argue about are rarely the valuable ones.
• Beneficiary designations reviewed alongside the will, because retirement accounts and insurance pass outside it and quietly override the plan when the forms are stale.
• Guardian nomination for minor children, with an alternate.
• How debts, expenses and taxes are paid, and out of which part of the estate.
• Funeral and burial instructions, if you want them recorded, and the appointment of an agent to carry them out.
• Witness signatures and notarisation of the self-proving affidavit, done properly at the signing.

Storage and the four-year rule

Keep the original — copies create serious problems, because Texas presumes a will last in the testator's possession that cannot be found was revoked. Tell the executor where it is. And note that a will must generally be offered for probate within four years of death; after that, the routes are narrower and the estate is usually treated as intestate.

Common questions