Handwritten Wills in Texas
The Requirements and Perils of Handwritten Wills in Texas
Not everyone prepares for death in the same way. For some, death comes suddenly.
In those last remaining minutes, they scrawl something on a napkin, or a handy sheet of paper, to ensure that their assets make it to the right people when they pass.
But each state in the U.S. has various rules particular to that state governing the execution of wills.
In addition, there are multiple grounds on which a will can be contested. The fewer i’s dotted and fewer t’s crossed, the less likely the will is going to stand up in a court of law.
There are four general grounds for contesting a will in Texas. Two of these include a failure to comply with guidelines and requirements for legitimate wills. However, exceptions are given to holographic wills or wills that were written by hand.
Is a Handwritten Will Legal in Texas?
Texas will recognize a handwritten or “holographic” will. There are, of course, basic requirements for accepting a holographic will at face value. Those are:
- The holographic will must be entirely in the handwriting of the deceased (known as a testator)
- The holographic will must be signed by the testator
Holographic wills do not need a witness to validate them and they can be written on basically anything, including the fender of a tractor.
The Perils of a Holographic Will
Generally speaking, holographic wills are either composed as temporary placeholders for formal wills or under the extreme duress of impending death. In some cases, those with very little property to disburse won’t need very much more than a holographic will.
For obvious reasons, those with major assets do tend to take a more formal approach to the drafting of a will.
Nonetheless, holographic wills will be considered legal documents if they meet the necessary criteria in Texas. On the other hand, there are some potential dangers to executing an estate via a holographic will.
Testators aren’t probate attorneys. They don’t necessarily know precisely what constitutes a legally valid will. Holographic Wills often have problems that require them to be sorted out by the court. For instance, wills that have not been drafted with an attorney’s guidance may contain ambiguous text. It will then be up to the court to decide what the testator meant. In other cases, it will name no executor which means the court will have to supervise the administration of property. These costs will be taken from the estate itself.
In almost every case, the cost of fixing problems in a handwritten will, will exceed the cost of having an attorney help you draft one in the first place.
Holographic Wills are the Easiest to Contest
For those who are thinking that a holographic will is good enough to administer their modest estate, you should be aware that handwritten wills are the easiest to contest. That means that someone can challenge the validity of your will on legal grounds.
Typically, a well-drafted will is almost impossible to successfully contest. The burden of proof is on those contesting the will to prove that the will is in some way contrary to the desires of the testator.
However, for a holographic will to be accepted by a Texas court, there is a burden of proof on the testator or those who which to actuate the will on the testator’s behalf. The court must be certain that the will has been drafted in the testator’s own handwriting and was created for the purpose of serving as the will of the testator.
Since holographic wills do not require witnesses, the court needs to believe that the will, in fact, expresses the wishes of the deceased.
What Happens if a Will is Found to be Invalid?
After a person dies their will is submitted to probate. If the court finds the will to be invalid, then the property must be distributed in accord with intestate succession.
Intestate succession means that the state of Texas will distribute your property to your heirs in accord with a set of standards and procedures determined by the heirs’ relationship to the deceased. In other words, the testator’s wishes no longer matter and a formula is used to determine who gets what property.
Intestate Succession in Texas
There are three reasons why intestate succession would govern the deceased’s property distribution:
- Their will was found to be invalid
- Their will was not submitted to probate within 4 years of their death
- They had no will governing the distribution of their property
Property that would normally pass through your will is distributed according to a formula that depends entirely on who is still alive to inherit the property.
For instance, if the deceased has no spouse but living children, then everything would be distributed among the children. If the deceased has no children but has a spouse, then everything goes to the spouse.
Now, what if you have a spouse and children? Your spouse would inherit all of your community property and one-third of your personal possessions, while your children get the rest.
In other words, there exists a hierarchy of succession with your spouse at the top of the list, your children next, parents and siblings after and so on. In the event that they’re all alive, there would be a complex formula to determine distribution.
In the event that there is literally no one to whom the estate can pass, the property would go into escheat, meaning the state would get your property. This, however, is extremely rare. If you have even one blood relative, however distantly related, they will become the inheritor of your property.
There is one excellent way to avoid this entirely, however, and that is to have a qualified lawyer draft a formal will. It is very difficult to contest a will that has been drafted by a qualified attorney.
The Dallas attorneys at Lindquist Wood Edwards LLP are prepared to assist you with any estate planning issues you may be facing. Give us a call at 214-891-7581 or contact us online, and we can help you draft a legally valid will that will withstand the legal process and enforce your wishes after you pass.