The basic requirements for a legal will in Texas are pretty simple. In fact, under certain circumstances the state will even recognize an oral will. However, even though your will meets the state’s requirements, it may not be the best course of action for your family. Consider your options.
Yes, it’s true. Texas will recognize a will that is not even written. An oral will must meet two requirements. First, it must be spoken “in extremis,” meaning under extreme circumstances. For example, if a person is on his or her deathbed and has not had the opportunity or ability to make a written will. Secondly, an oral will must be heard by at least three witnesses that are not beneficiaries and are over 14 years of age. It is of note that an oral will can only refer to personal property, not real estate.
Oral wills are rare and date back to a time when Texas was a frontier state and many people did not know how to write. It’s highly recommended that you have a written will. Written wills have pretty basic requirements as well, though. First, they must be signed by the Testator, who must be an adult. Second, a legal will has to be written with “testamentary intent,” meaning the Testator was of sound mind at its creation. Third, it must be signed by two witnesses in front of the Testator. The witnesses must be at least 14 years old and not beneficiaries of the will.
While the legal requirements for a will are simple, the confusion that it may cause after your death can be complex and expensive for your family. Having an attorney draft your will helps to decrease the chances of it being challenged and your wishes not being met. An attorney can also recommend special circumstances for your will and bring up situations for which you may not have accounted. For example, if you have minor children you’ll want to make sure guardianship and a trust for their financial needs is legally established so that they are cared for as you would like. Or, you may want to stipulate that your home passes to your children if your surviving spouse remarries. You might need to appoint a long-term caregiver for a disabled spouse or child. Many variables exist beyond the simple decision of who gets your money and property.
Ford+Bergner has extensive experience in Texas estate, probate and guardianship law. Contact us for help with all your estate planning needs.