Uncertain times call for careful planning.
By Leu & Peirce, PLLC
In uncertain times, thoughts sometimes turn to what will happen with your estate after you die. Many people know that it is important to have a Will, but dislike discussing death, so Wills are often not considered until there is a crisis.
An appropriately drafted and executed Will not only states who receives assets after death, but can also control distribution to beneficiaries receiving public benefits so they maintain their eligibility for the benefits, appoint a guardian for minor children, and provide for contingencies if the people named have predeceased you, among other things. In Texas, you have full authority in a properly drafted and executed Will to include or exclude anyone you choose. No matter what your Will says, though, your wishes are only followed if the Will meets legal requirements. The best way to ensure your Will is valid and your wishes are followed is to consult with a professional – an experienced estate planning or elder law attorney.
In Texas, any person of sound mind has the right to make a Will, if the person is 18 years of age or older, or, if not yet 18, is or has been married or is a member of the armed services. The person who makes a Will is called a testator. A Will must be in writing, signed by the testator or in the testator’s presence and at the testator’s direction, and attested (signed) in the testator’s presence by two or more credible witnesses who are at least 14 years of age. If a Will is self-proved, it may be admitted to probate court without the testimony of the witnesses. To be self-proved, the Will must have an affidavit subscribed and sworn to by the testator and the witnesses before a notary public. While it is possible in some rare circumstances, under recent emergency orders or with an online notary, for the notary to be observing the signing electronically, standard law requires the witnesses to be in the physical presence of the testator. In these days of COVID-19 contagion concerns, though, it is not always advisable for a testator to be in the presence of two witnesses.
One of the many things we have learned from our collective experience with COVID-19 is that we do not know what is around the next corner. We cannot plan for every event that life holds for us. Should you find yourself without the ability to meet with an attorney or have your Will properly witnessed and notarized, you should know the essential elements required to create a valid holographic Will in Texas.
A holographic Will is a Will that is written entirely in the testator’s handwriting and signed by the testator. All handwriting on the document must be the testator’s and must be legible. A typed document or one written in someone else’s handwriting, even if signed by the testator, must have two witnesses to be a valid Will. However, a holographic Will does not require witnesses. After it is created, a holographic Will can be made self-proved at any time during the testator’s lifetime through an affidavit signed by the testator in front of a notary public, stating that the document is the testator’s Will, the testator was of sound mind, was over the age of 18 or was married or in the military, and that the testator has not revoked the Will.
If you are unable to meet with a professional and execute a formal Will with witnesses and a notary public, then a holographic Will can bridge you through difficult times. When writing your holographic Will, it must be clear that your intent is to transfer, convey, or dispose of your property upon your death through the use of phrases such as “upon my death” or “when I die.” It is not required that you include the date on your holographic Will, but it is certainly advisable. As long as your holographic Will is written wholly in your handwriting, signed by you, and indicates your intent is to transfer, convey, or dispose of your property upon your death, you have met the essential requirements for creating a valid holographic Will in Texas.
Remember that a Will is only part of the legal documents you need to protect yourself and your assets, so talking with an attorney should still be on your list. Until that is possible, though, a holographic Will may ease your mind.
Lori Leu, Erin Peirce, and Lauren Olson are Elder Law attorneys with Leu & Peirce, PLLC with offices in Plano and the North Dallas area. They can be reached at 972-996-2540.