• T. Maxwell Smith, PLLC

Texas Estate Panning Series: Last Will and Testament

Updated: May 8, 2020

Texas Estate Planning Series: Last Will and Testament


This blog is not to be considered legal advice. It refers specifically to issues regarding the law of the State of Texas at the time it was written and it is not guaranteed to be an exhaustive update of all Wills & Trusts law.


A person’s Last Will and Testament is a document that is meant to govern the disposition of the individual’s estate following his or her death. In order for a will to be valid, there are certain circumstances that must exist and there is specific information that must be contained within the document.


Terms and Definitions


Within a will, there are a number of different terms that most people probably do not use on a daily basis. It is important to familiarize yourself with the terms in order to keep them straight as this series goes forward.


The first term that should be defined is the testator. The testator (or testatrix) is the deceased person who made and signed the will. Essentially, this is the person who listed out the assets of their estate and determined who gets what. The testator may also be referred to as the decedent.


The definition of testator requires us to learn a couple more terms: estate and beneficiaries. The estate is all of the property owned by the testator at the time of his or her death. This is not just the decedent's real estate property, but all of his or her personal property as well. Beneficiaries are those named by the testator to receive property or other benefits under the will.


During the probate of a will someone must be in charge to distributing the decedent's assets to his or her beneficiaries. This person will be either an executor or an administrator. An executor is a person who is selected by the testator to execute the directions laid out in the testator’s will. And administrator essentially fulfills the same function but the administrator will be appointed by the Court in the event that the will fails to appoint an executor or if the chosen executor has predeceased the testator.


This is not an exhaustive list of the terms that you will see in this brief overview on wills and trusts but these are important ones that are good to know if you want to better understand the Estate Planning and Probate processes.


Capacity and Intent


In order for a person to execute a valid will in the State of Texas that person must have (1) Legal Capacity, (2) Testamentary Capacity, and (3) Testamentary Intent.


In order to have legal capacity “...a person of sound mind has the right and power to make a will if, at the time the will is made, the person: (1) is 18 years of age or older; (2) is or has been married; or (3) is 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.

in the State of Texas, a person must be at least 18 years old, be lawfully married, or be a member of the United States Armed Forces. This is normally pretty black and white, a person either fits one of these criteria or they do not.


Testamentary Capacity can sometimes be more difficult to determine. “In proving that the testator possessed testamentary capacity when he executed the will, a proponent must bring forth evidence showing that the testator at such time understood the following factors: [1] the business in which he was engaged, [2] the nature and extent of his property, [3] the natural objects of his bounty and their claims upon him, [4] the effect of the instrument he executed, [5] the person or persons to whom he meant to bequeath his property, and [6] the method of distribution.” Essentially, a person who drafts a valid will must be able to understand what he or she is doing. For the most part, these requirements are self-explanatory. One that probably sounds foreign to most people is the portion referring to “the natural objects of his bounty and their claims upon him.” This simply refers to the testator’s family, relatives, or next of kin.


Lastly, a person must have testamentary intent when drafting a will. This requirement is relatively straightforward as well. The person making the will must intend to do so. He or she must intend to make a revocable legal document designed to distribute his or her estate at the time of his or her death.


Will Formalities


Beyond establishing that a testator’s possesses the requisite capacity and intent, a will must adhere to certain formalities. There are two types of written wills in the State of Texas: (1) an attested will and (2) a holographic will.


Attested wills are most common. The Texas Probate Code outlines the requirements for an attested will. “ Except as otherwise provided by law, a will must be:

(1) in writing;

(2) signed by:

(A) the testator in person; or

(B) another person on behalf of the testator:

(i) in the testator's presence; and

(ii) 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.”


Section 251.052 of the Texas Estates Code lays out the criteria for a holographic will: Notwithstanding Section 251.051, a will written wholly in the testator's handwriting is not required to be attested by subscribing witnesses.” Holographic wills should not contain any provisions, signatures, notes, or anything else that is not handwritten by the testator.


Texas statutes go further to provide the option for the testator to attach a self-proving affidavit to their will. A self-proved affidavit is optional and it requires that testator sign the will in the presence of two witnesses. The two witnesses and the person making the will would then sign the self-proved affidavit before a notary public. The purpose of such an affidavit is to prove that the will was made and signed by the testator. Without such document the witnesses to the execution of the will would have to testify as to its veracity.


If a will fails to meet the criteria laid out under the laws of the State of Texas than it will be declared invalid. If this occurs and there is no other valid will for the Court to look to then the decedent will be said to have died intestate. A person dies intestate when there is no valid will at death and, at that point, the laws of intestacy will control the division of the decedent’s estate. A Will Planning Questionnaire can be found HERE. If you have any questions regarding the Estate Planning or Probate process do not hesitate to call my office at (817) 475-5522.



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