Friday, May 1, 2015

Changes to the “Self Proving” Affidavit for a Texas Will

Texas has now fully adopted the Texas Estates Code, effective January 1, 2014. This “new” set of statutes is a recodification of the former Texas Probate Code, Texas Trust Act, and a number of related statutes contained in the Texas Health & Safety Code and other statutes.

One of the most important changes involves the “execution ceremony” for a person’s last will and testament.  Previously, at least one witness was required to appear in court, usually in person, to “prove up” the authenticity of your will after your death, unless you (as testator) and the witnesses to your will also signed a separate attachment called a “self proving affidavit” before a notary public.

This process led to some confusion, because the testator and the witnesses had to sign the will in multiple places, and an “overlooked signature” would cause procedural problems for your executor.

Now, Section 251.1045 of the Texas Estates Code contains a combination “attestation and self-proving” clause, so that the testator and witnesses need only sign a Texas will in one location.  In order to be effective, the language in the will must be in “substantial compliance” with the specific language set out in this statute. We recommend copying this clause exactly in order to avoid any potential complications. 

Also, this single signature option is only effective for wills executed on or after January 1, 2014; please check your current will to make sure that it fully complies with the previous statutes concerning “self proving” language and signatures.

Because the language of your will – particularly the failure to include certain language – can affect the type of probate proceedings required to administer your estate in Texas, we strongly recommend that you contact an attorney well-versed in Texas estate planning and probate law to assist you in preparing your last will and other estate planning documents. Self-prepared wills or wills created with multi-state software programs often fail to take full advantage of Texas statutes that can help reduce the amount of cost and time required to finalize your financial affairs once you have passed away. 

By: Cynthia W. Veidt,