Wednesday, August 1, 2012

Texas: Does My Will Have To Be Written?

I’m going to have to give y’all the dreaded lawyer answer to this question: “It depends.”
Texas generally requires that every will be in writing – whether typed or in the Testator’s handwriting, or a mixture of both – in order to be valid for purposes of probate.

But Texas used to be a frontier state, where folks may not have learned to read or write, and not everyone had handy access to paper, pen and ink. So Texas does recognize an oral will (also called a “nuncupative will”) as valid and enforceable if, and only if:

1 - It is spoken “in extremis” – in other words, the person making the oral will (the “testator”) is on her deathbed during her last sickness and has no time, ability or opportunity to make a written will; and
2 - It is spoken to at least three witnesses who are over the age of 14 and who are not beneficiaries under the will.

An oral will can only dispose of the testator’s personal property – a disposition of the testator’s real estate / real property must always be in writing.  

And proving the terms of an oral will can be very difficult and very time-consuming (read, expensive) because they are strongly disfavored, even under Texas law.  In other words, the probate court will not make any presumptions to find the existence of a valid oral will.

For these reasons, it is highly recommended that every will should be written.

By: Cynthia W. Veidt, Attorney