How Do I Ensure My Will Is Legally Valid?

It is your right to do what you want with your property while you are alive and to have it disposed of according to your wishes after you pass away. For the latter, however, you need, at the very least, a will. At Hensley & Krueger, PLLC, in Houston, TX, we are dedicated to making sure that our clients’ wishes will be carried out.

How Do I Ensure My Will Is Legally Valid?

There are a number of legal requirements you will need to meet for your will to be considered valid. In Texas, these basic legal requirements are as follows:

Age

The maker of a will, in this case, you, is called “the testator.” In Texas, the testator must be at least 18 years old or must be legally emancipated, married, or currently serving in the military.

Capacity

You must also have what is called testamentary capacity. This means that you understand the nature of making a will, the extent of your assets, and the people who will inherit your property.

Written Document

Oral wills, also known as nuncupative wills, are generally not recognized in Texas. For your will to be valid, it must be a written document, of which Texas recognizes two kinds.

Attested Wills are typed or printed documents which are then signed by the testator and witnessed by two credible witnesses. This is the most common type of will and is generally considered the most reliable. Holographic Wills are entirely handwritten wills. While valid in Texas if they meet the other requirements, holographic wills are more susceptible to disputes and misinterpretations.

Signed by the Testator

You must sign the will. If you are unable to sign due to physical limitations, you may direct someone else to sign on their behalf in their presence.

Witnessed

The will must be signed by at least two credible witnesses aged 14 or older. Witnesses should not be beneficiaries under the will to avoid conflicts of interest.

Contested Wills

While the points above outline the minimum requirements of a will, it is possible for wills to be contested. Though there are a number of reasons why a will might be contested, the most common are the following:

Objection to the Executor

Your will should include an appointed executor or administrator to manage the estate while it awaits distribution to the beneficiaries. If the executor is not qualified or cannot meet the requirements of an executor, your beneficiaries and family members may contest the executor’s appointment.

Revocation of the Will

It is possible to write a will long before your passing. This is prudent, as it means that in the case of a sudden illness or accident, your property will be distributed according to your wishes. However, if your beneficiaries believe that you revoked an earlier will, or there is more than one existing will in play, disputes are likely to arise.

Lack of Capacity

Your beneficiaries might contest your will if they believe you did not have the capacity to create a will at the time it was executed.

Undue Influence

A will must be a true reflection of your wishes, written of your own free will and not under duress, or it is not valid legally. If there is reason to believe that someone has unduly influenced you to change your testamentary arrangements, then your will may be challenged by your family.

Suspicion of Forgery

Although more familiar to us from sensational plot lines of books or TV, will forging does happen from time to time. If your loved ones suspect that your will was not actually written by you or does not reflect your wishes, they may attempt to challenge it.

How Do I Make Sure These Challenges Do Not Arise?

Draft Your Will Carefully

The language used in your will should be clear and precise to avoid ambiguity. It must include the following essential elements:

• Identification of yourself, the testator
• Identification of this document as your last will and testament
• A revocation clause to nullify any previous wills
• Clear information on how you want to distribute your assets
• The appointment of a trustworthy and capable executor
• The appointment of a guardian for any minor children
• A residuary clause to address any assets not specifically mentioned in the will

Demonstrate Your Testamentary Capacity

If you believe there is any doubt as to your soundness of mind, or if you fear that your will might be challenged on those grounds, you can have this assessed and certified by a medical professional.

Have the Will Signed and Witnessed Properly

Make sure that you adhere to the signing requirements. Additionally, while not required, a self-proving affidavit can be highly useful. This document, signed by the testator and witnesses in the presence of a notary public, simplifies the probate process by proving the will’s validity without requiring the witnesses to testify in court.

Update It Regularly

Disputes may arise if you do not update your will after any major life events. These could include marriage, divorce, any significant changes in financial status, or the death of your executor or a beneficiary. Keeping your will up to date also ensures that it is the most accurate reflection of your wishes.

What if I Want to Cut Someone Out of My Will?

Cutting a close relative out of your will is the sort of action that can lead to will disputes, especially if the lack of inheritance comes as a shock to them. Along with the steps you can take to make all challenges less likely, such as using clear and explicit language, you may choose to leave them a nominal request. This is a token amount of money left as a bequest to show that you did not forget their existence but rather wished them to have this small amount and nothing more.

Keep it Somewhere Safe

Once your will is completed, store it in a secure location, such as a fireproof safe or with your attorney. Inform your executor and trusted family members of its location to ensure it can be easily accessed when needed.

Consult a Will Lawyer in Houston, TX

While it is possible to draft a will without legal assistance, it is always better to consult a professional. An experienced estate planning attorney can do much more than just ensure your will complies with Texas law. We can address complex issues like tax implications or blended families and anticipate the potential challenges. In some cases, we may suggest that you make provision other than a will, such as establishing a trust or creating a transfer-on-death deed. We know every situation is unique, so you can trust us to provide tailored advice to make sure your wishes are documented effectively.

Creating a will that is considered legally valid and making sure that your loved ones get what you want them to after your death can require the help of a skilled attorney. Whether your situation is simple or complex, get in touch with us today at Hensley & Krueger, PLLC, in Houston, TX, to book a consultation and begin planning for the future.