As the number of COVID-19 cases continue to rise across the United States, many concerned citizens have begun to seek out professionals to draft their wills and update any pre-existing plans they have. The fear and uncertainty surrounding the virus has highlighted the importance of preparing an estate plan. Still, the current demand for estate planning is high, and attorneys, witnesses, and a notaries are very hard to come by (much less all in the same room!). With this being the case, what is the most viable option to ensure the proper preparation of a legally valid will? Any Texan who does not have a formal estate plan in place should consider drafting a handwritten, or holographic will, in accordance with Texas Law.
In the State of Texas, an individual can create their own holographic will, and have it recognized by law as valid. While it will not be as comprehensive as those drafted by an Estate Planning attorney and will result in a more complicated probate process, holographic wills can provide individuals with peace of mind, as they know that their final wishes will be honored.
While holographic wills are valid in the Texas, there are numerous requirements which must be met for the law to truly respect said document. First, Texas Law requires that holographic wills must be written entirely in the testator’s handwriting and signed. Although it is not a requirement, it is preferred by the Court that holographic wills are dated, as it makes it easier to assess the age requirement and the testator’s soundness of mind at the time of the will’s drafting and signing. Furthermore, when a holographic will is drafted and signed, the testator must: 1) be at least 18 years of age; 2) be of sound mind; and 3) not have revoked the will. While the requirements are rather stringent, Texas Law recognizes two exceptions to the age requirement. If a testator is under the age of 18 at the time of their holographic will’s drafting and signing, then Texas law will only recognize it as valid and binding if the testator was: 1) married; or 2) a member of the Armed Forces.
Holographic wills can be self-proven, or signed and made valid without the presence of witnesses. If a holographic will is self-proven, then the testator must also attach an affidavit that is signed in front of a notary. This affidavit must state that: 1) the document is the testator’s final will; 2) they were at least 18 years of age at the time of its drafting (or that they otherwise met one of the two exceptions to the age requirement); 3) they were of sound mind at the time of the will’s drafting; and 4) the testator has not revoked, or annulled, this particular will.
Finally, many individuals are deterred from writing their own wills because of their worry that it must contain specific legal words and phrases which they would otherwise be unaware of. In a holographic will, this is not a requirement. There are not any particular words and phrases which must be included for a handwritten will to be legally valid and respected by the Court. The only requirement regarding the style in which a will is written is that it must be testamentary. A holographic will is testamentary if the document is clearly intended to be the testator’s will, and it explicitly sets out how their property should be disposed of after their passing.
Today, we are living in a time surrounded by so much uncertainty and fear, and one should do what they can to prepare for all scenarios. If you are in a rush to ensure that you have a will set up, or want something to be in place before you have a formal will drafted by an Estate Planning attorney, then follow the guidelines above and write your holographic will. It is never too late to take all necessary precautions to make sure that your loved ones are taken care of in an emergency. If you have questions about completing an estate plan during these trying times, please contact a qualified estate planning attorney. An estate planning attorney can guide you through the process of drafting a stop-gap handwritten will and also assist with signing a formal will once the crisis has abated.
Nielsen Law PLLC provides family focused estate planning to individuals and families in Austin, Round Rock, Cedar Park, and the Central Texas area. For more information and to learn about our firm, please contact us.