Self-Proving Wills in Texas
Historically, Texas recognized three types of wills. The first was an oral will, sometimes called a nuncupative will or deathbed wish. Because of their limited application, oral wills made (signed) after Sept. 1, 2007, are no longer valid in Texas. The two other types are still valid. A will written entirely in the deceased’s handwriting is known as a holographic will. A will not entirely in the deceased’s handwriting (typically a typewritten will) is known as an attested will.
Holographic wills need no witnesses to be valid. The law simply requires that the document be entirely in the deceased’s handwriting and signed. No date is required, but one should be included. A holographic will may be made selfproving either at the time it is signed or any time thereafter before the maker (testator, if a man, or a testatrix, if a woman) dies.
To do so, the maker must swear to and sign an affidavit before a notary stating the instrument is the maker’s last will and testament, and that the maker:
- was at least 18 years old when the will was executed (or, if younger than 18, the maker was lawfully married at the time or a member of the U.S. Armed Forces, an auxiliary thereof or the Maritime Service),
- was of sound mind and
- had not revoked the will.
An officer authorized to administer oaths, which includes notaries and military officers among others, must
then place his or her seal and signature on the affidavit (Figure 1 shows an example). The affidavit must then be attached to the will. One person can draft (write) and sign a valid holographic will. However, it takes two to make it self-proving:
the testator (or testatrix) and a notary. The statute does not contain a recommended form for holographic wills, only the required contents of the self-proving affidavit.
A valid attested will requires the maker’s signature and the signature of two or more credible witnesses. A credible witness is a competent person older than 19 who is not a beneficiary of the will. The maker need not sign the will in the presence of the witnesses, but he or she must sign prior to the witnesses signing. The witnesses must sign the will in the presence of the maker but not in the presence of each other. An attested will, as with a holographic will, may be made self-proving at the time it is signed, or anytime thereafter before the maker dies.
To do so, the maker and all the witnesses (at least two of them) must sign the promulgated statutory affidavit (Figure 2) after taking an oath before a notary authorized to administer such oaths. The maker and the witnesses must sign the affidavit in each other’s presence and in the presence of the notary. The notary then places his or her seal and signature on the document, and the affidavit is then attached
to the will.
The statute makes no distinction in the sex of the maker. In fact, the Probate Code states that the masculine gender includes the feminine and neuter in its definitions. Consequently, the term “testator” as used in the promulgated form refers to either sex.