How does Texas Define a Handwritten Will?
A handwritten will, sometimes referred to as a "holographic will," is defined by Texas law as a will "written in the handwriting of the testator and not formally witnessed." A Texas probate court will admit a holographic will to probate if it was "signed" by the testator and it contains a "clear meaning of the provisions made for the property and the devisees." So what this means is pretty much anything written down by the testator, in his or her own handwriting, will determine his wishes upon his death. If the writing is not witnessed or notarized it is still fully valid. The only condition for the hand writing is that it must be entirely in the testator’s handwriting (even the date). It can be in any order, as long as the intention is clear. In the past, if you also had your signature and initials on the pages to indicate where to continue, that is sufficient as well . However, the Wills Executor Agency has put language on its website stating that most courts will not consider those as part of the written "will" so it may not be accepted for probate. So the best practice now is to separate each page of the will with clear intention, and not rely on requiring others to decipher your intention. It should not be necessary to have someone help you to understand what you have written. Some examples of seemingly informal items that qualify as a valid will include: Examples of documents that do not qualify as a will include: A holographic will, even a poorly written one, is usually better than no will. Thank goodness for the Texas Legislature, they recognized the difficulties faced by some Texans in accessing a formal process for preparing a will. Although I don’t believe this is what the legislators had in mind, we have all seen stories from around Texas that entertain at least. We hope you never need to write a holographic will, but if you do, do your best to make your wishes clear!
Are Wills Completed by Hand Legal in Texas?
Yes, handwritten wills are legal in Texas. However, there are some important caveats. Under Texas probate law, a holographic will is defined as an "unwritten" will that is signed by the hand of its maker and "dated and unwitnessed."
Interestingly, only two forms of will are required to be made in writing and executed with witnesses: 1) the "attested" will, which is valid only if it is in writing, signed by the testator (the person making the will), and attested by two or more witnesses, or 2) the "self-proved" will, which is valid only if the testator signs it in the presence of two witnesses, and the witnesses then sign a declaration under oath before a notary public.
Texas probate laws often permit the admission of handwritten wills into probate court without the requirement that they follow the standard rules for "attested" or "self-proved" wills. For example, the statute does not prohibit oral or holographic wills. Furthermore, Texas’ statutes suggest that the document at issue should be admitted to probate so long as there is evidence that the testator had the capacity to make a will and that the will was signed by the testator.
Suppose a person drafts a will in his or her own handwriting with no witnesses and no notary public to certify the document. However, let’s say that the testator had the requisite capacity to make the will. In that case, the Texas courts will accept the handwritten will, even if it was never "proved" in front of a witness or notary public.
However, some questions may arise if the language of the will is confusing or impossible to understand. If a person claims that the testator lacked the normal capacity to make a will (e.g. was suffering from dementia), the court may have the testator evaluated to determine whether the he or she really did have the requisite capacity. But, if the testator does not have the capacity and the will is unclear or impossible to decipher, the court may declare the will invalid.
Texas Requirements for a Legally Binding Handwritten Will
The essential requirements for a valid will are set forth in Section 57 of the Texas Probate Code: "A will is not valid unless it: (a) Is in writing; (b) Is signed by the testator; (c) Is attested by at least two credible witnesses who subscribe the testator’s name in their own handwriting in their own handwriting and at the testator’s request in his presence; or (d) Is signed by the testator in the presence of at least three credible witnesses who are not required to attest the will." As articulated by the Texas Supreme Court: "To establish a will, a proponent must prove three elements: (1) that the testator intended the paper instrument to be his will, (2) that the testator executed the instrument in accordance with statutory formalities necessary for the will to be self-proved, and (3) that the testator signed the instrument attested by at least two credible witnesses who in turn subscribed the testator’s name in their handwriting on the will itself, in their own handwriting, and at the testator’s request in his presence." McCormick v. Gray, 322 S.W.3d 780, 786 (Tex. 2010). The requirement that the testator sign the will ". . . in the presence of at least two creditable witnesses who subscribe the testator’s name in their own handwriting in their own handwriting and at the testator’s request in his presence . . ." relates only to attested wills. Texas Probate Code §57(c). It does not apply to holographic wills. For holographic wills "the testator’s signature on the will . . . is sufficient if he signs it at the end thereof." Texas Probate Code § 59. As the Texas Supreme Court has explained: "Holographic wills are not attested. Holographic wills lack an attestation clause, and the witnesses do not sign their names to the instrument. Unlike a formal will, the intent to make the handwritten document a will is inferred from the document itself, not the presence or testimony of subscribing witnesses." McSnuggs v. De La Garza, 988 S.W.2d 759, 765 (Tex.1999). "Because there is no attestation clause in a holographic will and because the attesting witnesses are not required to sign their names to the document, the signature of the testator at the end of the will is sufficient. Id." McCormick v. Gray, 322 S.W.3d 780, 788 (Tex. 2010).
Common Mistakes to Look Out for in Handwritten Wills
While Texas law does not require a formal will, there are still a few common mistakes people make when drafting a handwritten will that could render it null and void.
Lack of Testamentary Intent
First and foremost, a testator (the creator of the will) should be clear that their document is in fact a will that conveys testamentary intent. What does that mean? Simply that the testator intends their will to take effect on their death and not at some other time. The case law is well settled that when a will appears to take effect on something besides death, it is void for lack of testamentary intent. There are a few exceptions, such as a will that only takes effect on incapacitation, but again, this is uncommon. Even if a will contains testamentary intent language, the clear intent of the testator must indicate that intent. For example, if a testator’s handwriting unmistakably communicates that it is a will, but the body of the document states specifically that the document is not a will, then the clear intent of the testator is to not create a will. In such a situation, the presence of testamentary intent language within the four corners of the document is not enough to satisfy the statute and indicate that the document is a will.
Absence of Attestation Clause
While not enough alone, the presence of an attestation clause is usually a strong indication that the document at issue is a will. If the document at issue includes such a clause, the testator is instructing his witnesses to sign the document attesting that the testator appeared to be of sound mind, appearing voluntarily, and possessing testamentary intent. Not surprisingly, many of those who attempt to create a valid will under Texas law do not include the requisite attestation clause. Luckily, if a will which lacks the attestation clauses is otherwise valid, a court can cure the lack of attestation by using a statutory presumption found in Texas Probate Code. Those seeking to revive a seemingly invalid will due to lack of the first three prongs of the attestation, however, will find their chances increased considerably with presence of the attestation clause.
Omissions of Other Required Documents
Usually, any Texas attorney will first ensure that the will is properly executed pursuant to the Texas Probate Code. Generally speaking, this involves requiring the testator to sign in front of two witness. Even in cases where a client comes to an attorney with his or her own will in hand, and does not require an attorney to draft a new one, even under a holographic will, most attorneys will insist the will be signed in their presence so that the attorney can witness the signature. Finally, a few basic things that are commonly overlooked by non-attorney drafters are named executors, witnesses, proper signature blocks and dates, and notarization.
The Pros and Cons of Handwritten Wills
A handwritten will is often seen as a quick and simple solution to the complexity of estate planning. However, while Texas recognizes them as legal documents with certain conditions, they come with both advantages and disadvantages.
The biggest advantage of using a handwritten will is undoubtedly its simplicity. Drafting this type of will can be done in just a few minutes, with little to no involvement from an attorney. All that is required is a written document detailing your final wishes, signed and dated by you. For many people, this accessibility is its main selling point. It’s done quickly and can be filed with other estate planning documents or even stored in a safe place. Additionally, the cost of drafting and executing a holographic will is significantly lower than that of a traditional will.
However, there are some significant downsides to using a handwritten will. First and foremost, these documents may be open to challenges by disgruntled heirs. Because the intent behind such wills is often ambiguous, there’s ample opportunity for interested parties to portray the document as something other than it is . This leads to the threat of costly and time-consuming legal disputes that can take years to resolve and result in the depletion of your estate. In fact, this threat may be enough of a deterrent for many people to avoid using a handwritten will altogether.
Furthermore, a handwritten will may require more effort to be proven in court than a traditional will. Because they’re often less clear than formal documents, there may be additional battles over the contents of a drawn-out process requiring more time and money to settle. These are worth considering, especially if there’s a chance that family members might take issue with the will.
Of course, there are also some positive aspects of using a handwritten will. Not only is it simple, it has the added bonus of being immediately available. If you’ve neglected to include your mode of finalization in your estate plan, a handwritten will can be a way to immediately state your intentions. However, only after consulting a Texas estate planning attorney should they be considered for inclusion in your estate plan. Writing a will isn’t something to be taken lightly, and doing so requires forethought and effort.
How to Probate a Handwritten Will in Texas
To probate a handwritten will (also known as a "holographic" will) in Texas, you will generally need to present the original-witnessed will to the probate Judge within the statutory time limits. Texas Probate Code requires the person named as executor in a holographic will to file an application for the probation of that holographic will within four years after the testator’s death and to probate the will within 4 years from the death of the testator.
The process for probate of a holographic will in Texas is the same as that for a witnessed will. You will file an "Application to Probate Will," paying special attention to Texas Property Code §258.001 and include the original-witnessed will as an exhibit. In the Application to Probate Will, you will also request approval of the determination of the validity of the holographic will as written. Finally, you will ask the Court to enter a judgment declaring the holographic will to be valid and directing the issuance of letters testamentary to you in your capacity as executor.
It is important to understand that the burden will be on you to establish the validity of the holographic will. Therefore, you may wish to enlist the help of a Texas probate attorney experienced in the probate of holographic wills to assist you in proving its validity.
When to Call an Estate Planning Attorney
For various reasons, individuals may find themselves dealing with a valid handwritten will in Texas. While handwritten wills are "allowed" in Texas, they are not the best method for creating a last will and testament because they can result in a number of issues which might escalate into litigation. Because of these potential problems that these documents might cause, it is important to always consult with an estate planning attorney when creating or validating a holographic will written in Texas.
Realistically, most estate plans take more time and attention to detail than what most people have to commit to them . Furthermore, the world in which we live can throw us unexpected curve balls. Whether an unexpected family event or personal circumstances arise during the time you are attempting to create an estate plan or the time immediately following a loved one’s death, we take the time and attention to hear and answer your legal questions.
We advise families even after a death when there is no will or there is a will that is potentially invalid due to some issue. Some situations that we believe require attorney consultation are: