Writing your own will in Texas: what the law accepts and where homemade wills fail

Yes, Texas lets you write your own will

Yes. Texas law allows you to write your own will, either entirely in your own handwriting or typed and signed in front of two witnesses, and the Supreme Court of Texas has approved basic will forms that anyone can use. Whether you should depends on how simple your family and property are. For a single person with modest savings, a careful do-it-yourself will can be enough; for a blended family, minor children, a business or real estate in more than one state, homemade wills are where I see the most expensive mistakes.

I practice estate planning law in Dallas, and I would rather someone have a valid simple will than no will at all. This guide explains what Texas requires, the typical ways do-it-yourself wills fail, and the point at which paying an attorney is worth it. It is general information, not legal advice about your situation.

What Texas requires for a valid will

Texas Estates Code Section 251.001 says a person of sound mind may make a will if they are at least 18, are or have been married, or are serving in the armed forces. Section 251.051 sets out the basic formalities for an ordinary will: it must be in writing, signed by you (or by someone else in your presence and at your direction), and attested by two or more credible witnesses who are at least 14 years old and who sign their names in your presence.

TexasLawHelp.org, in its guide to the court-approved will forms, recommends witnesses who are not receiving anything under the will. That is good practice. A witness who also inherits can create questions later that a disinterested witness avoids.

• You are of sound mind and meet the age or status requirement
• The will is in writing
• You sign it, or direct someone to sign for you in your presence
• Two credible witnesses, at least 14, sign in your presence
• Ideally, the witnesses inherit nothing under the will

Handwritten wills, and the self-proving step most people skip

Texas is one of the states that recognizes a holographic will. Under Estates Code Section 251.052, a will written wholly in your own handwriting does not need witnesses. The key word is wholly. A preprinted form with handwritten blanks filled in, or a typed page with a handwritten signature, is not a holographic will, and without two witnesses it may fail.

A handwritten will can also be made self-proving by attaching an affidavit, which makes it simpler to prove in probate. Without one, the court generally needs testimony that the handwriting is yours, which can mean finding people who knew your handwriting well years after you are gone.

A self-proving affidavit is a sworn statement attached to the will, signed before a notary, confirming that the will was signed properly. With it, the will can usually be admitted to probate without witnesses coming to court. TexasLawHelp.org's court-approved will forms call for signatures from you, two disinterested witnesses and a notary for this reason.

Many online templates and homemade wills omit the affidavit or get the wording wrong. The will may still be valid, but the family then has to locate the witnesses, sometimes decades later, or prove the will another way. It is an avoidable expense at a hard time.

Where do-it-yourself wills go wrong

Over the years, the problems I see in homemade wills fall into a few patterns. Most are not about legal technicalities. They are about questions the writer did not know to ask, and they usually surface only after the writer has died, when no one can fix them.

• No alternate executor or alternate heir, so a single death sends the estate back to the default rules
• No independent executor language, making probate more supervised and slower
• Gifts to minor children with no trust, so the money is managed under court oversight until 18
• A blended family plan that ignores Texas community property
• Specific gifts of property that has since been sold
• Changes made by crossing out and writing in after signing
• A will that contradicts the beneficiary forms on retirement accounts and life insurance

What happens if a homemade will does not hold up

If a court finds that a will was not signed or witnessed correctly, the result is usually the same as having no will at all. The estate passes under the Texas intestacy rules, which divide property by formula based on marriage, children and whether property is community or separate. The person you named as executor has no authority, and the court has to determine who the heirs are before anyone can be appointed. I explain what that formula does to a typical family in what happens to a Texas family's house, accounts and children if there is no will.

A will can also be valid and still fail in part. A gift to a person who died before you, with no alternate named, may fall back to the default rules. A provision that is ambiguous can lead to a dispute among relatives about what you meant. These are not rare edge cases; they are the ordinary result of writing a legal document without knowing what questions a probate court will ask of it.

Keep the original safe and findable

Whoever drafts it, the signed original is what the court will want. Store it somewhere safe that your executor can actually reach, and tell your executor where it is. A copy is not a substitute, and a will no one can find helps no one.

Timing matters too. Under Texas Estates Code Section 256.003, a will generally may not be admitted to probate after the fourth anniversary of the person's death unless the person offering it was not in default for the delay. A will discovered in a drawer years later can lose much of its force, which is one more reason to make sure the right people know it exists.

When a form is probably fine

The Supreme Court of Texas approved four will forms, published through TexasLawHelp.org, for people who are single or married, with or without children. If your situation matches one of them closely, your property is modest and mostly passes by beneficiary designation anyway, and nobody in your family is likely to contest anything, a form can do the job. Follow its signing instructions exactly.

TexasLawHelp.org itself says the forms are not a substitute for a lawyer's advice, and it recommends naming an independent executor and, if you have children, a guardian. Read the form completely before you fill it in, and make sure the family situation it describes is actually yours.

Then do the follow-through that a form cannot do for you. Check that the beneficiary forms on your retirement accounts and life insurance say what you want, since they pass outside the will. Tell the person you named as executor that you chose them and where the original is kept. And put a note on your calendar to reread the will after any major change in your family or property.

When I would not do it yourself

Some situations are simply too easy to get wrong without help. In each of these, a homemade will may be valid on paper and still produce a result the writer never intended. If you are in any of them, I would talk to a licensed Texas attorney before signing anything, and my guide on the questions to ask before hiring an estate planning attorney can help you pick one.

• A blended family, or children from more than one relationship
• Minor children who would inherit meaningful assets
• A child or heir with special needs who receives or may receive public benefits
• A business interest or rental property
• Real estate outside Texas
• Someone you expect to object to the plan
• A wish to control when and how heirs receive money

Do not forget what a will does not cover

Even a perfect homemade will only works after you die. It does nothing if you are alive but unable to manage your money or speak to your doctors. That job belongs to a durable power of attorney, a medical power of attorney and a directive to physicians, which are separate documents with their own signing rules.

A will also does not control assets that pass by beneficiary designation or survivorship. If you are deciding between a simple will and a trust, read will or living trust in Texas. If you already have a will and are not sure it still fits, my guide on the life changes that mean a will is out of date walks through the review.

If you want a second pair of eyes

Some people draft their own wishes first and then ask me to turn them into a proper plan. That works well. You have already done the hard thinking about who gets what and who should be in charge, and my job is to make sure the documents say it in a way that holds up under Texas law and works in probate.

I practice alone from my office on Plano Road in the Lake Highlands area of Dallas, and you speak with me directly by phone or in person. Bring whatever you have written, any existing documents and a list of what you own. I will tell you what I would change, what I would leave alone, and what it would cost. For advice on your own situation, talk to a licensed Texas attorney who has seen your documents.

Questions people ask me