How Should I Sign My (Texas) Will?

You must sign and date your Will.  

The Will should also be signed by at least two disinterested witnesses who are at least 14 years old.  A disinterested witness is someone who is not named as an executor, trustee, or beneficiary in your Will.  You should also try to avoid using any family members who might inherit from you under the laws of intestacy as a witness to your Will. 

Under best practices, you should sign the Will in the witnesses’ presence, and tell each disinterested person that the document they are signing is your last Will and you want them to witness your Will.  

Each witness must sign the Will in your presence.  Although it is not necessary for the witnesses to sign the Will in each other’s presence, it is better to have both witnesses sign the Will at the same time and in each other’s presence, too.  

The witnesses should print their names underneath their signatures and provide an address at which they may be contacted in the event that their testimony is needed at a later date. 

In addition to simply signing your Will, you should consider adding a “self-proving affidavit” to your Will.  (See separate blog entry re: self-proving affidavits). 

It is strongly recommended that you consult with an attorney prior to signing any legal document, including your Last Will and Testament; this will help ensure that the document meets current statutory requirements and that you understand the significance and consequences of each provision and term contained in the document. 

By:      Cynthia W. Veidt 

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