When most people think about “estate planning”, they think about making a will. Although executing a will may be only one part of the estate planning process, it’s a very important step you can take to protect your property after your death. Making a will insures that your property will not go into intestacy, but will be passed to those people or causes that are most important to you.
Wills include many areas of the law that you may wish to explore, these include:
Creating a Last Will and Testament that meets all of your families needs, can be a fairly complicated process. It's important to speak with an experienced Will Lawyer in Texas to help work out all of the fine details.
Houston Will Lawyers
At Wilhite & Lea, we can help you with all of the legal issues related to a Last Will and Testamen. Contact us for assistance if you're located anywhere in the greater Houston area, including Harris, Montgomery, Fort Bend, Waller, Grimes, or Washington Counties. Our attorneys can help you through this process and give you the peace of mind to secure your familie's well-being.
Will Information Center
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Making a Will
You must be 18 years old to make a will, unless you are married or in the Armed Forces.
There are two ways to make a will in Texas. You can create an “attested” will, which is a formal will signed by witnesses. Or you can create a holographic (hand written) will, which does not need to be signed by witnesses.
An attested will must be signed by the person making the will (the testator) as well as two witnesses. The witnesses must be over the age of 14. They must sign the will in the testator’s presence, although it’s not necessary that they sign before the testator. They do not need to know that the document they are signing is a will. Attested wills are generally preferable, since they are easier to prove in court.
Texas also recognizes holographic wills. Holographic wills must be wholly in the handwriting of the testator. Extraneous printed words won’t invalidate the will, as long as they are truly extraneous. If the printed words cannot be removed from the will without destroying its meaning, then the will is invalidated. Holographic wills do not have to be signed by witnesses.
You cannot make an oral will in Texas.
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There are some important steps you should take to insure than your attested will is valid.
In general, it is preferable to create an “attested will.” These wills are easier to prove in court after you have died. In order to create an attested will, the following formal requirements must be met:
- The will must be signed by the person making the will (the testator).
- The will must be attested (signed) by two witnesses over the age of 14.
- The witnesses must sign the will in the testator’s presence. The witnesses do not need to sign after the testator, as long as everyone signs in one contemporaneous transaction.
You should speak to an attorney about these requirements and how you can meet them. You should also speak to an attorney if you believe that your will, or the will of a family member, was not created correctly.
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Texas allows for holographic – or handwritten – wills under certain circumstances. In general, however, it is better to create a will using a formal process.
In order for a holographic will to be valid, it must be WHOLLY in the handwriting of the person making the will (the testator) and signed by the testator. Extraneous printed words won’t invalidate the will as long as the printed words are not necessary to complete the will. If the words can be taken out, and the will still makes sense, then the words won’t invalidate the will.
As of September 1, 2007, oral wills are no longer recognized in Texas. You cannot make a valid oral will in Texas today, and an oral will made after that date will not be valid.
You should speak to an attorney before attempting to execute a holographic will, or to determine whether a holographic will you have already made is valid.
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Proving a Will
It’s fairly easy to prove that an attested will was “duly executed” (created and signed in the proper way). All that Texas courts require is the testimony of one witness. If none of the witnesses are alive, then Texas courts require two witnesses to testify that the handwriting of anyone who signed the will – the testator or the witnesses – is valid.
You can make the process of proving the will even easier by including an attestation clause. An attestation clause recites that the witnesses signed the will in the presence of the testator. These clauses can be used as evidence that the will was properly executed.
You may also choose to create a self-proving will. These wills include an affidavit, signed by the testator and the witnesses, which includes all of the testimony a witness would be asked to give in court. If your will includes one of these affidavits, then no witnesses will need to be called to testify after you die. The will is self-proving.
Proving a holographic will can be a bit trickier. Two witnesses will need to be called to testify regarding the testator’s handwriting. Holographic wills may also be self-proving, if the testator signs a self-proving affidavit and has it notarized. Holographic wills tend to be litigated more than attested wills, particularly on the issue of whether the handwritten document was intended to be a will, or was just a note or a letter.
Our Houston Family Lawyers can assist you with deciding what kind of will is right for you, and how to properly make it.
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Destroying or Revoking a Will
You can revoke a will in two ways: by a subsequent writing, or by a physical act.
If you revoke your will by a subsequent writing, that writing must be made with the same formalities as the original will. However, a holographic will may revoke a typed, attested will.
If you create a second will that does not expressly revoke your first, the court will try to read the two wills together. The second will only revokes those portions of the first will that are completely inconsistent with the second will.
You may also choose to revoke a will by a physical act, such as burning or tearing up the original will. Intent to destroy is not enough to revoke your will – you must actually, physically destroy the document.
If you have an attested will and you wish to revoke it by physical act, you must revoke the whole thing. You cannot simply cross out provisions that you do not like. However, if you have a holographic will, you may cross out sections of the will, and only those sections will be revoked.
It’s very important to remember that if you revoke or destroy a will, you need to have another will or estate planning tool in place to replace it. Otherwise, your property will pass through intestacy.
You should talk to an attorney before you attempt to revoke or amend your will. Your attorney can assist you in deciding whether to revoke or amend the will, in doing so properly, and in creating a new will or other arrangement to meet your needs.
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Tips for Making a Will
Many people assume that you may not disinherit certain people in your will. For example, many people believe that you have to leave something to your wife or children. That is not true. Texas has no “forced heirship” law. You may choose to give your property to anyone you like after you die, and you may choose to specifically disinherit anyone you want to in your will. You do not have to leave anything to anyone based on their relationship to you alone.
Many people also choose to leave their final wishes in their will. For example, some people will include provisions regarding their funeral, or where they would like to be buried. This is not a good idea. Most of the time, the will is not opened and read until after the funeral has taken place. Putting these sorts of directives in your will does not guarantee that your wishes will be carried out, and will likely only make your family feel guilty if they did not do as you wanted. A better idea is to leave these instructions in a separate writing, and to discuss your preferences with your loved ones.
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Wilhite & Lea, P.C. | Texas Estate Planning and Will Lawyers
The attorneys at Wilhite & Lea, P.C., can help you create a will that is valid and achieves your goals. We can also answer your questions about revoking or proving a will, or challenging a will that you do not believe is valid. If you are in the greater Houston area, including Harris, Montgomery, or Fort Bend Counties, contact us today to speak with one of our attorneys about your estate planning needs.