When creating a will in Texas, it’s essential to follow specific legal requirements to ensure the document is valid. One of the most common questions about wills is whether they need witnesses and a notary. The answer depends on the type of will and the approach taken to validate it. Here’s what you need to know.
Witnesses for a Will: What Texas Law Requires
Under Texas Estates Code § 251.051, a valid will must be:
- In Writing – The will must be written, either typed or handwritten. Though handwritten wills can be valid in Texas, they often create more problems than they solve. If not written properly, the cost to probate a handwritten will is significantly more than using our Texas Family Will and Trust Plan.
- Signed by the Testator/Testatrix – The person making the will (the testator or testatrix) must sign it. If the testator is unable to sign, someone else can sign on their behalf in their presence and under their direction.
- Attested by Two Witnesses – Two competent witnesses must sign the will in the testator’s presence.
The witnesses play a crucial role in confirming that the testator executed the will willingly and had the mental capacity to do so.
Legal Requirements for Witnesses
To qualify as a witness to a will in Texas:
- Age: Each witness must be at least 14 years old. However, it’s generally better to have a witness that is at least 18 years old.
- Competency: Witnesses must be competent, meaning they can understand and testify about the will’s execution.
- Disinterest: Ideally, witnesses should not have a financial or personal interest in the will. While interested witnesses are permitted under Texas Estates Code § 254.002, their inheritance under the will may be limited unless there are at least two disinterested witnesses.
- Easy to Locate: If a witness to a will is to testify in court after the person passes away, the witness should be easy to locate.
Do Texas Wills Need to be Notarized?
A will does not need to be notarized to be valid in Texas. However, adding a self-proving affidavit to the will is highly recommended, and this document does require notarization.
What is a Self-Proving Affidavit?
A self-proving affidavit is a sworn statement signed by the testator and each witness in front of a notary public. It eliminates the need for each witness to testify in court after the testator’s death.
Under Texas Estates Code § 251.104, a self-proving affidavit must include:
- Statements from the testator and witnesses affirming the will’s validity.
- A notary’s acknowledgment of these statements.
The affidavit simplifies the probate process by serving as evidence that the will was properly executed. If the original will cannot be produced in court, witnesses will need to testify in court even if there is a self-proving affidavit. Keeping the will in a safe place is important!
Why Witnesses and Notaries Matter
Witnesses ensure the testator created the will voluntarily and with sound mind. While notaries are not required for the will itself, they add an extra layer of legal assurance when a self-proving affidavit is included. Skipping these steps can lead to delays, disputes, or even invalidation of the will.
Key Takeaways
- Texas wills require two competent witnesses for validity.
- Each witness should ideally be disinterested to avoid complications.
- A notary is not required for the will but is necessary for a self-proving affidavit, which makes probate easier.
Protect Your Wishes with a Valid Will
Crafting a valid will in Texas doesn’t have to be complicated. Don’t risk your estate plan with a generic, online will that doesn’t comply with Texas law. At Texan Wills and Trusts, we ensure your documents comply with Texas law and include a self-proving affidavit to streamline probate. Start your estate plan today!
Disclaimer:
The information provided in this article may include legal or tax information, but it does not constitute legal or tax advice and should not be construed as such.