Hand writing your own will might seem like a good idea. You can put down exactly what you want without paying a lawyer to do it. So are handwritten wills legal in Texas? Yes, but they come with risks.
Is a Handwritten Will Legal in Texas?
So, is a handwritten will legal? Texas recognizes handwritten wills (also known as holographic wills). When done correctly, they have the same effect as a typed will. Not all states honor holographic wills, but those that do have their own requirements for creating a valid will. Until or unless the testator (the person creating the will) revokes it, the handwritten will is effective.
When Is a Handwritten Will Valid?
To create a legally enforceable handwritten will, it must meet certain criteria under Texas law. A holographic will is valid only if the testator:
- Handwrites the entire document;
- Signs the will; and
- Has the proper testamentary capacity and intent at the time they create the will.
There’s no need for witnesses when creating a holographic will. Let’s look at the details of each requirement.
The entire will must be in the testator’s handwriting. It cannot be typed or in someone else’s handwriting and then signed by the testator.
The testator’s signature must be somewhere on the document. There’s no requirement that the testator sign using his or her full name. Any sign or mark indicating a signature is sufficient.
Testator’s Capacity and Intent
When creating a will, the testator must have the requisite mental capacity and intent. Testamentary capacity (or being of “sound mind”) is the testator’s mental ability to make a will. This requires that the testator understand the following:
- What document they are creating;
- The effect of the document;
- What property they own; and
- Who their family members are.
Additionally, the testator must be able to make reasonable judgments about distributing their property under the will.
A testator has testamentary intent when their goal is to create a will and distribute their property through it. The testator can show evidence of testamentary intent by simply including language, such as, “I give my property to my wife,” or even just dating the document.
What Happens If a Handwritten Will Is Invalid?
Essentially, there’s a specific order of family members that inherit the estate if they survive the testator. The first person in line is the spouse, then the children, then the parents, and so on until there’s no property left in the estate. This may not be the result the testator wants, as certain family members may be left with nothing.
To avoid this, an estate planning attorney can draft your will for you, ensuring the document meets all legal requirements and communicates your wishes.
Pros and Cons of Handwritten Wills
In limited situations, a handwritten will may be a good idea. For example, if a person is nearing the end of their life, handwriting their will is better than doing nothing. This gives evidence to the probate court of what the testator wants. However, the cons of a handwritten will far outweigh the pros.
Missing Provisions and Legal Requirements
If you’re unfamiliar with Texas laws on holographic wills, you may end up creating an unenforceable document. Even if you do meet the three criteria for a handwritten will, it’s likely you will leave out important provisions that properly transfer your property.
Opens the Door to Probate Litigation
When the time comes to administer your estate, beneficiaries, creditors, and other interested parties may argue that your handwritten will is invalid. This is known as contesting the will. This process can be lengthy and full of acrimony. The end result can be damaged family relationships, thousands of dollars in unnecessary expenses, and a painfully prolonged probate process.
May Cost More in the Long Run
Writing your own will can be costly. As mentioned above, your family may spend a significant amount of money going through the court system to determine if your will is valid.
Let Our Estate Planning Attorneys Draft Your Will
Are holographic wills legal in Texas? Yes. Are they a gamble? Yes. Give yourself (and your family) peace of mind by letting one of our experienced estate planning attorneys draft your will properly.
At the Robbins Estate Law, we put families first. We take the time to get to know you, your finances, and your family so we can create estate planning documents that meet your needs and goals.