A will is one of the basic estate planning documents that every adult should have to ensure their final wishes are carried out after their death. Also, a will prevents the State of Texas from deciding how to distribute a person’s property after that person’s death. An individual may want to consult a Texas wills and trusts lawyer when drafting a will to ensure that the will meets all legal requirements for a valid will in Texas. If a will does not meet legal requirements, the will may be void.
What are Holographic Wills?
Texas recognizes three different types of wills, including holographic wills. Holographic wills are handwritten wills. Some individuals prefer to handwrite their wills because they do not wish to involve an attorney, they prefer complete privacy, or they may be unable to consult an attorney. Some handwritten wills are drafted near the end of a person’s life when that person may be homebound or hospital bound.
The reason why a person chooses to write their will does not matter. What does matter is that the holographic will meets the legal requirements to be considered a valid will under Texas laws?
What are the Legal Requirements for a Holographic Will in Texas?
In addition to the two basic legal requirements for all wills, holographic wills have two other legal requirements:
- The person making the will (the testator) must be 18 years of age, unless the person is legally married or in the armed services;
- The testator must be of sound mind;
- The holographic will must be entirely in the testator’s handwriting; and,
- The testator must sign the holographic will.
- Unlike other types of wills, a holographic will does not require a witness to validate the will.
Disadvantages of Choosing a Holographic Will
A holographic will may be a simple and convenient way to address estate planning; however, a handwritten will can cause problems for a person’s heirs. Even though a holographic will that meets the above legal requirements is a valid legal document under Texas law, that does not mean that the court will honor a holographic will in all situations. Family members may contest the will on several grounds.
Some of the problems of using a holographic will for estate planning include:
- Failing to address all issues that a will should address. For instance, if a parent does not name a legal guardian for a minor child in the will, the court appoints the guardian if the child’s other parent is deceased or otherwise incapable of caring for the child. Likewise, failing to name a trustee for their minor child’s inheritance results in a court-appointed conservator for the child.
- A testator who handwrites a will may not know or may overlook naming a person to serve as the administrator for the estate. Again, this oversight could lead to court intervention if the person’s heirs cannot agree who should serve as the personal representative or executor of the estate.
- Illegible handwriting can create problems interpreting the will. This issue can lead to lengthy and costly probate litigation to resolve the matter.
- Handwritten wills are easy to contest. A well-drafted will should make it extremely difficult for an individual to contest the validity of the will. With a typed, witnessed, and self-proven will, the person contesting the will has the burden of proving the will is invalid. Because a holographic will does not require witnesses, the court must ensure that the will is in the testator’s handwriting. If an heir contests the will, the process of hiring handwriting experts and litigating the matter can be costly and time-consuming.
- The testator may use vague language that results in multiple interpretations of the will. Vague language often results in a judge deciding the testator’s intentions, which may or may not be what the testator actually intended when he or she wrote the will.
Contact a Texas Estate Planning Attorney for More Information
Holographic wills can be useful in situations in which obtaining legal counsel may be impossible because of an emergency or time constraint. However, obtaining legal advice regarding wills and estate planning is usually the best way to ensure that your final affairs are handled according to your wishes. If your handwritten will is ruled invalid, the Texas intestate laws dictate the distribution of your property. Intestate estates can take longer to finalize and can be costlier than estates with valid wills.
Working with a Texas estate planning attorney is the best way to ensure that your will is valid and expresses your desires in a clear, unambiguous manner. Schedule a consult with an attorney to help draft a will that gives you the peace of mind that your family and your property are protected after your death.