How do I ensure my will is legally binding?

In every state across the nation, a legally binding last will and testament guarantees that the public and government acknowledge and abide by a person's final wishes about the distribution of their assets and guardianship over any of their dependents. A testator, the person who creates or modifies a will, outlines every wish and the name of a person or persons they want to administer their estate. That person, the executor, informs and works with people who benefit from it known as beneficiaries. A will helps prevent disputes and upheaval between family members, business partners, close friends and others about the estate.

Whether you want to make changes to your existing will, or need to make a will for the first time while living in Texas, it's imperative you understand the legal requirements for the state. This guide explores the basics of crafting a binding will that can help prevent anyone from easily contesting your wishes after you pass.

What are the requirements for a valid will in Texas?

As a Texan, you must meet certain legal requirements when crafting an enforceable will. Each of the following basic requirements helps create an outline that makes your wishes known in a straightforward fashion and protects you and your beneficiaries.

1. The will must be in writing

Since September 2007, Texas has banned oral wills, also known as nuncupative wills, because of the risk of fraud. For this same reason, the state, at the time of this writing, doesn't permit digital or electronic versions that eliminate all offline documents from the process or the use of electronic signatures.

A testator in Texas can only present a handwritten or printed document as a legally binding will. With a printed will, you must guarantee via text or handwriting that you weren't required to write your will a certain way because of outside influence or duress. If you choose to use a handwritten or "holographic" will, you must write the entire document by hand and never include any printed text or another person's handwriting on it.

2. The will must be signed by the person making the will

No matter the will's format, a testator must sign it using their legal signature in a specific area. If you decide to use a printed will, you must ask two trustworthy witnesses, no younger than 14 years of age, to watch you sign it and then sign their names. These witnesses can have no interest or stake in your estate. If you have difficulty signing your name, you can ask a second legally approve person to sign on your behalf while you and the witnesses are present for the signing. 

If you use a handwritten will, you don't need witnesses. That said, you should consider using a printed will with witnesses and request a lawyer to proofread or write it. A lawyer can check for legal loopholes that might make the document fail to hold up in court.

3. The person making the will must be eighteen or older

Texas considers children under the age of 18 to have limited capacity to make decisions about their property or dependents. Yet, some exceptions exist for underage testators. If you're underage, you can create or modify a will when you serve in the Maritime Service or military, serve in an auxiliary of the military or marry someone legally under Texas law. A parent or guardian, or a court, must have previously established your ability to make these types of decisions. 

4. The person making the will must be "of sound mind."

To have a sound mind or mental capacity, the testator must understand the steps to create or modify a will and the potential positive and negative outcomes of their decisions. Many people contest a will by bringing into question the testator's mental capacity before death. If you can't fulfill the "sound of mind" requirement, Texas won't recognize your will unless you have someone else making decisions on your behalf under, for example, a power of attorney directive.

5. The person making the will must have "testamentary intent."

The language the testator uses in the document must show that they want a will and the reasons they want it. Clear, precise language and legal terms that you use can serve to prove that you had full mental capacity at the time of the will's creation or modification and purposely prepared or directed someone else to prepare the document before you signed it. It also helps prevent confusion about what you intended with the will. You must always make your intentions clear to reduce confusion causing a dispute among beneficiaries and others.

Does a Will Have to be Notarized to be Valid in Texas?

A testator typically doesn't need to have a notary public or court representative sign off on their will when they first create or modify it. Although a testator can have a notary serve as a witness, Texas doesn't require a notary's presence, or the notarization of the will except in one scenario. If you want to self-prove your will with the help of a notary to guarantee its authenticity during probate proceedings, without witnesses testifying to the validity of the document, you must attach a "self-proving affidavit" to it.

What is a Self-Proving Affidavit?

A self-proving affidavit is an optional form of protection against people contesting a will. A notary attaches a sworn statement to your will verifying that it's a valid, legal document. They state your age and mental status, the ages, lack of conflict of interest, and mental capacities of your witnesses, and confirm their presence when you and your witnesses signed the document. 

What Happens if Will Is Not Valid?

Many laws in Texas provide the public and courts with direction about how they must distribute an estate and assign dependents when a deceased person failed to create a will or meet necessary legal requirements. These laws bypass the deceased individual's wishes entirely.

When that happens, people you dislike or feel don't deserve anything from you might acquire your money, property and other assets. The state might assign your dependents to family members you feel aren't responsible or total strangers. Without a will, people you knew and cared about before your passing might enter into years-long disputes in court over your estate, which can prevent funds and other assets they need from reaching them in your originally intended timeframe.

As you can see, an appropriately written, signed, witnessed and validated last will and testament is a legal document that protects your interests after your death and those of your loved ones and others. For more information, contact one of our caring experts today.