There is much confusion as to the legal requirements for a will. Terms such as “probate” or “will” have very specific meanings under the law, even though common usage of those terms doesn’t necessarily correspond to their actual meaning. In this blog post, we overview the basic requirements to probate a will under Texas law. Remember, however, that every situation is unique, so please reach out to one of our Dallas-based probate attorneys to discuss any issues you or one of your loved ones may have with a will.
What are the basic requirements to probate a Will?
In Texas, a last will and testament must be:
(1) in writing,
(2) signed by the testator in person or another person on behalf of the testator (in the testator’s presence and under the testator’s direction), and
(3) attested by two or more credible witnesses who are at least 14 years of age and who subscribe their names to the will in their own handwriting in the testator’s presence.
A will could be valid with only one witness and a notary who witnesses the signing of the will.
What is the significance of a self-proved will?
If a will is self-proved, the proponent has made a bask case that the will was executed with the appropriate formalities. It is then usually not necessary to include live testimony from witnesses at the hearing.
A will is self-proved if it includes an affidavit that is in form and content similar to the affidavit contained in Section 251.104(e) of the Texas Estates Code (“TEC”). In this language, the witnesses swears to important facts. One of these facts is the witness’s belief that the testator is of sound mind.
If the will is not self-proved, the proponent of the will must meet other requirements described in Section 256.152 of TEC.
If the purported will does not meet the above-listed statutory requirements, some of which are described above, the proponent of the will cannot probate this purported will. The alternatives may include a determination of heirship, an affidavit of heirship, or a small estate affidavit.
There are very specific legal requirements for a will to be valid under Texas law. Often, the will may have been done informally and may, or may not, meet the legal requirements. If you are facing questions as to how to probate a will under Texas law, reach out to one of our Dallas-based probate attorneys for a consultation. Every situation is unique, and you want to preserve your rights should you be facing a will contest under Texas law.