Are Handwritten Documents Valid in Estate Planning?
Nov. 22, 2022
A will remains a powerful estate planning tool that allows you to provide detailed instructions about how your affairs are to be settled and your assets disposed of or distributed to inheritors after your demise. In Texas, a last will and testament can be either attorney-drafted (attested) or handwritten (holographic). However, there are some important requirements that must be met to ensure that the will is legal and valid.
At The Law Office of Mario Flores, PLLC, I have the knowledge and diligence to assist and guide clients through the complexities involved in drafting wills and estate planning documents. As an experienced Texas estate planning attorney, I can enlighten you about the benefits and downsides of holographic wills, and help determine whether your loved one's handwritten will is legal and valid. My firm is proud to serve clients throughout Austin, Round Rock, Georgetown, and San Marcos, Texas.
Why Having a Will Is Important
A will – also known as a last will and testament – can be described as a legal document that allows a person (the testator) to set forth various instructions concerning how their estate should be administered and their assets distributed or disposed of after their death.
Generally, having a will in Texas helps ensure that you do not die intestate. Without a will – if you die intestate – the state's intestate succession laws will determine what happens to your assets. Also, having a will can help make probate quicker and less expensive.
Types of Wills
Two types of wills are recognized under Texas law: attested and holographic wills.
Attested Will
An attested will – formal or attorney-drafted – is a last will and testament which is drafted by an estate planning attorney on behalf of the testator. An attested will must be signed by the testator and witnessed and verified by at least two non-interested persons.
Holographic Will
A holographic will is a last will and testament that is completely written in the testator's handwriting. There are no witnesses required for holographic wills to be valid. However, the testator must sign the will.
An experienced Texas wills attorney can enlighten you about the various types of wills and their legal requirements for validity.
Requirements for Holographic Wills
Here are the legal requirements to make a valid holographic will in Texas:
Handwritten by the Testator: The will must be entirely handwritten by the testator. If another person writes it and the testator signs it, the document will be considered invalid.
Signed by the Testator: The testator must sign the will. However, the testator's full name or any identifying mark can suffice as a signature.
Testamentary Intent and Capacity: The testator must have the testamentary intent and capacity at the time the will was executed. Testamentary intent is the testator's willingness to create the will and distribute their property to inheritors when they die.
To establish testamentary capacity, the testator must be able to:
Understand that they're creating a will
Understand the impact of making a will
Know the assets and property they have
Identify the family members who will be beneficiaries of the estate
Form a reasonable judgment and make informed decisions about the will they're creating
In addition, the testator must provide an accurate description of the asset to be transferred and the beneficiary who will receive it.
Advantages of a Holographic Will
It is better than having nothing, especially during an emergency situation.
It is cost-efficient.
It is convenient. All you need is paper and a pen to draft the will.
It gives the testator more control over the process.
Disadvantages of a Holographic Will
The testator may not know the provisions and legal requirements for a valid holographic will in the state.
It may be difficult to locate the will.
The beneficiaries may easily contest or dispute the will.
Verifying the testator's signature, handwriting, and capacity may pose different challenges.
The testator's estate and beneficiaries may be subjected to unforeseen expenses during probate or estate administration.
While a holographic will offers a faster and cheaper way to create your estate plan, a well-detailed attested will may be beneficial in the long run. An experienced attorney can help you create a last will and testament that best suits your unique needs.
Get Trusted Legal Assistance
When a loved one dies, issues often arise regarding the validity of a will. Hence, whether you are drafting an attested or handwritten will, it is important to ensure that your will is legal, valid, and meets all procedural requirements in the state. A knowledgeable estate planning attorney can guide you through the process and help you navigate key decisions.
Contact me at The Law Office of Mario Flores, PLLC today to schedule a simple consultation with a knowledgeable wills attorney. I can offer you the personalized legal counsel and advocacy you need to make informed decisions in your estate planning matters. My firm is proud to serve clients throughout Austin, Round Rock, Georgetown, and San Marcos, Texas.