Wills

Make Sure You Keep Your Family Protected With a Will

In the state of Texas, a will must meet specific requirements to be valid. For example, the person making the Will (the testator) must have testamentary capacity and testamentary intent as well as to follow legal formalities depending on what type of Will you have made.

Parra Law Firm, PLLC knows the importance of protecting those you love from getting into an unnecessary legal dispute when you pass away. Schedule a consultation today to help you navigate all the legal requirements to ensure your will is followed as you instructed.

How to Write a Will

A well-written Last Will and Testament will dictate how and to whom your estate and assets will be distributed after you pass away. The Texas Last Will and Testament is a legal estate-planning document that reflects the final directives of a testator (person to whom the will belongs).

There is no specific time at which a will must be drafted. In Texas, any adult may draft a will at any time. However, there are some requirements to make your Will valid before Texas law. Wills may be changed or revoked at any time by the testator, as long as the testator is of sound mind to do so.

Testamentary Capacity

Testamentary capacity is the legal term used to describe a person’s legal and mental ability to write or make changes to a valid Will. This is a very important concept that will ensure your assets don’t end up being divided among relatives in an unfair way that does not reflect what you wanted for themselves.

The test for capacity to execute a valid will is based on case law from Banks v. Goodfellow. A testator must:

• Understand the nature of making a will and its effects.
• Understand the extent of the property of which they are disposing.
• Be able to comprehend and appreciate the claims to which they ought to give effect.
• Have no disorder of the mind that perverts their sense of right or prevents the exercise of their natural faculties in disposing of their property by will.

Testamentary Intent

Testamentary intent is the testator’s intention to create a revocable disposition of property that will take effect upon his death. The testator’s intentions must be clear and evident in the document. A document instructing attorneys or executors on how something should work at some other future is not considered as a testamentary intent.

Legal Formalities to Take Into Account When Writing a Will

As well as having legal capacity and testamentary intent, some formalities need to be followed in order for these documents to take effect. Texas recognizes two types of written Wills. One is called a “holographic Will,” and the other type is referred to as an “attested Will.”

1. A holographic Will is a handwritten Will. To be valid, you must write the Will completely in your own handwriting and sign it. There is no requirement that witnesses or a notary sign the document.
2. An attested Will is a Will that is not completely in the handwriting of the testator. This is commonly a typewritten Will, like one an attorney would prepare for you. To be valid, you must sign the Will, or direct another person to sign it in your presence, and at least two credible witnesses over the age of 14 must sign it in your presence.

When a Person Dies With a Will in Texas

Generally, when a person dies with a will in Texas, their will must be probated before their assets can be divided among their heirs and beneficiaries. After a person dies, their will should be filed with the probate court in the county in which they lived prior to their death, along with a written application to admit the will to probate and appoint the applicant as executor. The application must be filed within four years of the person’s death.

Once it is filed, the clerk of the court will then post a notice in the courthouse alerting all interested parties that the will has been filed. The notice must stay up for a minimum of ten days to allow anyone who wishes to contest the will to come forward. If no one does, the court will proceed with confirming the will’s validity.

The court will then conduct a probate hearing, during which the judge will recognize the deceased person’s death and verify that the applicant is fit to be the executor of the estate and that the deceased person had a valid will. The clerk will issue the executor letters testamentary, which notify third parties that they have the authority to act on behalf of the estate.

Let Us Help You With Your Will

If you are looking to prepare for the future or want to know what to expect from your estate planning. Call our San Antonio office at (210) 332-5454 or email us here to schedule your free initial consultation.