DIFFICULTY: Legal assistance is recommended
Initial Filing Fee: $0
A will is a legal document that states how to distribute a person’s property after their death. In Texas, anyone over the age of 18 can create a legally binding will, as well as anyone under 18 who is married or who is a member of the armed forces or maritime services. They must also be of sound mind at the time of the wills creation, not be forced to make the will by anyone else, and have an intent to bequeath their property upon their death. There are four types of property that are governed by a will in Texas: Separate, Community, Real, and Personal. Separate property is anything acquired prior to marriage; community property is anything acquired by either spouse after a marriage; real property is real estate or land; and personal property is everything not considered real estate. An example of the distinction between real and personal property is that when you bequeath a piece of land to someone they are only entitled to the items contained on it (such as cars) if you specifically mention that they are. If you do not create a will, then you are said to have died intestate, and your property will be divided up according to a series of objective laws listed in the Texas Probate Code. The only way to ensure that everyone gets what you want them to have, then, is to compose an official will. Do be careful, however, not to bequeath too much (more than half of your shared property) – as your spouse will then have to choose between honoring that request or renouncing the entire will.
Step 1: Choose the Type of Will You Want
There are three types of wills: Oral, Handwritten (Holographic), and Typewritten (Formal). All are legally binding as long as the rules below are followed, but in general a Typewritten Will is considered the best choice to make, with the Handwritten second and the Oral last.
Step 2: Compose the Will According to the Legal Guidelines
Oral Wills are the most troublesome wills, as they leave no written record. They are legal in Texas, however, under very specific circumstances.
• Personal property only
• Only valid if made in a person’s last illness at home, or when taken away for sickness and before they have returned home
• Three or more witnesses necessary if over $30 worth of property is involved
• Only provable in court for six months after the person’s death
Holographic Wills are legal and less restricted than oral wills. Because a person must compose their own holographic will, however, rather than a lawyer, there is the possibility that their words might be unclear or that they might leave things out by accident.
• Completely in the person’s handwriting and signed by them
• No witnesses necessary
• Can be written on anything
• Can’t incorporate typewritten words
• Must show some intent to dispose of property at death – such as “This is my last will and testament”
• Any property not mentioned will pass along as if the person had died intestate
Typewritten Wills are the most advisable form of will, as they are least likely to be misinterpreted and are the easiest to read.
• Signed by the person or someone else at the person’s instruction
• Two witnesses above the age of 14
• Signed by the witnesses in the person’s presence
Step 3: Put Your Will Somewhere Safe
This might sound strange, but in Texas you do not file your will anywhere. Rather, you do what you want with it and when you die it is brought to a probate court to be deemed official. As a result, there is no filing fee or form necessary to create a will.
Step 4: Revise Your Will If You Wish
If you wish to revise your will later, such as when there is a death of one of your heirs, then there are two choices: add an amendment (known as a codicil) or revoke the will and write a new one. To add a codicil, you follow the same requirements as you did in the creation of the original will. To revoke the will, you can write a new will that mentions that you revoked your old one, write a statement that you revoked your will, or by physically destroying the old will (such as by burning it).