How a Texas Will Has to Be Signed

Whether a Texas Will is valid turns on how it was signed, not on how it was written. A Will drafted perfectly and signed wrong is not a Will. This page sets out what Texas requires, and where homemade Wills most often fail.

The three requirements

Tex. Est. Code § 251.051 requires three things.

The Will must be in writing.

You must sign it — or, if you are physically unable, another person may sign for you, in your presence and at your direction.

Two witnesses must sign. Each must be at least fourteen years old. Each must subscribe the Will, meaning write their own name in their own handwriting, and each must do so in your presence, understanding that they are witnessing your signing of the document.

You must also be of sound mind, and either eighteen or older, married or formerly married, or a member of the armed forces or the Maritime Service — Tex. Est. Code § 251.001.

What Texas does not require

Your witnesses do not have to watch each other sign. They do not have to read the Will, or know anything about what it says. It does not have to be notarized to be valid.

What Texas requires is that they sign while you are present.

Where homemade Wills fail

The presence requirement is the one that defeats most do-it-yourself Wills, and it is rarely the drafting that was wrong.

Signing at your kitchen table on Monday and mailing the Will to a friend to sign on Friday does not produce a valid Texas Will, however carefully the document was drafted. Nor does signing it and having a witness add a name afterward, out of the room, or at another address. The ceremony is the part that makes it a Will, and the witnesses each have to sign while you are present.

The self-proving affidavit

A self-proving affidavit is a sworn statement, signed by you and your witnesses before an officer authorized to administer oaths, that lets a court admit the Will to probate without your witnesses appearing to testify. Texas defines a self-proved Will at Tex. Est. Code § 251.101, sets out the affidavit's required form at § 251.104, and provides a combined form permitting simultaneous execution, attestation and self-proving at § 251.1045. Documents prepared through this office use the traditional affidavit rather than the combined form.

It is worth doing. Locating a witness two decades after a signing is a real problem and an entirely avoidable one. In addition, the self-proving affidavit creates a presumption of due execution, making it more difficult to contest the Will.

A Will without a valid self-proving affidavit is still a valid Will. The affidavit affects proof at probate, not validity.

The handwritten exception

A Will written wholly in your own handwriting — a holographic Will — needs no witnesses at all, under the exception at Tex. Est. Code § 251.052.

It is also a reliable source of litigation. Language gets left out, or written ambiguously, by someone who did not know what the document had to accomplish. It is best treated as a stopgap and not as a plan.

Signing instructions

Documents prepared through this office come with a checklist that walks through execution in order, because the step most people get wrong is this one and not the drafting.

More questions about Wills prepared online, with citations: Wills, Powers of Attorney and Directives in Texas — Questions and Answers. To prepare documents: Online Client Services.