Yes. Under Texas law, a person of sound mind with capacity may write their own will. To have capacity, the person must be: (1) 18 or older; (2) married or formerly married; or (3) a member of the U.S. armed forces. Further the person writing and signing the will must be of sound mind. To be of sound mind, a person must: (1) understand they are making a will; (2) know the effect of making a will; (3) understand the general nature and extent of their property; (4) know the natural objects of their bounty (in other words, know who their family is); and (5) understand the relation between the preceding elements long enough to create a will and form reasonable judgments.
Assuming that you have capacity and are of sound mind, there are two ways one can go about writing a will: (1) typing a will and executing (signing) the document with the formalities required under the Texas Estate Code; or (2) handwriting a will and signing it (a holographic will). This article will discuss how a person can write a holographic will (option 2 above). Please note that the rules discussed in this article only apply to holographic wills, not typewritten wills. Typewritten wills are governed by different rules and have different requirements for execution.
There are strict rules for drafting holographic wills. If a person runs afoul of any of the rules, a court will not accept the will to probate. This means that your property will be treated as though there is no will and your property will pass pursuant to the rules of intestate succession. What is intestate succession? Intestate succession are the default rules for distributing property when a person dies without a will. We will discuss the rules of intestate succession in a later article.
Under Texas law, the rules for writing a valid holographic will are as follows:
(1) The holographic will must be wholly in the Testator’s (decedent’s) handwriting and must be signed by the Testator.
This means that the entire document must be in your handwriting—not typewritten. Texas law allows for typewriting to appear on the holographic will without invalidating the document, however, the typewritten words will invalidate the will where the typewritten words are necessary to complete the will. This is known as the “surplusage rule”.
As an example, say that you are given a form that is completely blank other than the words “Last will and testament of Testator” at the top of the document. Below this typewritten phrase, you decide to handwrite in how you want your property distributed when you die, then you sign at the bottom of the document. You store the will in a safe place and then after you die, your children submit the will to the probate court. The court WILL NOT accept the document as a valid holographic will. Why? Because a holographic will must show testamentary intent (discussed below). The court will not consider the typewritten phrase because it is not in the handwriting of the Testator. The court will treat the document as though the only writing on the page is the handwritten provisions describing how to pass the property. Therefore, the document does not evidence testamentary intent. Accordingly, the will is not a valid holographic will.
The best practice for creating a holographic will is not to leave it to chance. If you choose to write a holographic will, make sure that it is entirely handwritten.
(2) The will must contain the signature of the testator.
The signature is a name or mark made by the Testator intended to show approval of the document as the Testator’s will. This means that initials are sufficient, but the better practice is to sign your name as you would any other document. This will ensure that there is no question about whether or not you signed the document. The signature can appear anywhere on the document, but the best practice is to sign at the end of the will.
Texas does not require the will to be dated, however it is a good practice to date the will. Dating the will allows the court to know if the will is the most current will in the case that there is another will that contradicts the holographic will.
(3) The will must show present testamentary intent.
Present testamentary intent means that it is apparent from the handwritten portion of the holographic document that the Testator intended the document to be a will (a document which disposes of property after death) when the Testator wrote and signed the will. The simplest way to show testamentary intent is to begin the will with the phrase: “I intend this will to be my last will and testament,” or “This is my last will and testament.”
The intent to dispose of property after death must exist when the Testator signs the will. As an example, a handwritten and signed letter to an attorney which stated: “I want to make a number of changes to my will,” followed by the changes that the Testator desired was not sufficient to show a present intent to dispose of property after death. When family members attempted to submit the letter as a holographic will, the letter was not accepted by the court as a valid holographic will because the document only showed a future intent to make changes to a will and didn’t show any intent that the letter was intended as a will. See Price v. Huntsman, 430 S.W.2d 831 (Tex. Civ. App. 1968).
Keep it simple and clear so there is no question that you intend the holographic document to be your will and to dispose of your property after you die.
(4) The will can be written on anything.
The best practice is to write your will on notebook or computer paper and then store it in a safe place. However, there have been cases where holographic wills were written on napkins, the back of envelopes, articles of clothing, and even one case where a farmer was pinned under his tractor and scratched a holographic will into the paint on the door of his tractor.
(5) No witnesses are required when you execute a holographic will.
In typewritten will, two witnesses are required to be present when you sign the will. This is not the case with a holographic will. There is no need for anyone to be present when a holographic will is signed. However, in the case of a holographic will, when the will is offered for probate, two people will need to testify that the handwriting in the will belongs to the Testator.
Downsides of holographic wills:
The natural question is: why spend money having an attorney draft my will when I can just write it myself? Although it is possible to write a holographic will, there are a number of issues that can come up:
(1) Incomplete dispositions:It is very easy to leave out property or people when you attempt estate planning without professional guidance. The more complicated your assets and the more people are in your family increases the risk that someone or something will be left out. Getting professional help limits this risk by ensuring that everything and everyone is included. Our attorneys have an estate planning toolkit that ensures that nothing falls by the wayside and that your estate is distributed according to your wishes. Even if you happen to leave a piece of property out of the planning process, we can include language that will ensure that the left-out property will not be missed when your will is admitted to probate.
(2) Contesting handwritten wills is easier than contesting a professionally drafted will. Think of the requirements above as independent opportunities to challenge your will. If you miss a step or make a mistake, it is possible for your will to be contested. The consequences of this can be catastrophic. If a holographic will is contested and is not accepted by the probate court, your property will pass as if you did not have a will (pursuant to the intestate succession rules). This means that your property will only go to your family in the way that is predetermined by Texas law. Anyone who is not covered by the statute (non-family and friends) will receive nothing.
Further even if you follow all of the rules above, handwritten wills are harder to interpret. There are phrases and terms of art in estate planning law that are important to include because it makes the Testator’s intent clearer. Trying to draft a will without knowing the law that will apply to your will is dangerous and can lead to challenges based on unclear language or illegible handwriting.
Our attorneys can ensure that your property passes according to your wishes. A well drafted will should be extremely difficult to contest. We do this by ensuring that your will complies with the law and is written in a clear and concise manner. If you are concerned enough about how your property is passed to write a handwritten will, then investing in professional assistance is well worth the peace of mind you will gain knowing that your will is well-planned and was drafted by an attorney. Doing this will prevent your family from having to engage in costly litigation that will result if your will is contested.
(3) There is a greater change of a lost will. When a person writes a holographic will, there is a greater risk that the will will be lost. This can be because there is only one original copy, or simply because a handwritten document does not look formal, and therefore, is less likely to be noticed when family is searching for a will after the Testator dies. Either way, a lost will can be detrimental. Under Texas law, if a will is lost, then a court will assume that the will was revoked.
For example, say that you write a valid holographic will. You sign the will in front of your family and make sure that they know you have created a will. However, when you die, your family can’t seem to find your will anywhere. Your family tries to explain the situation to the court and asks the court if witnesses can testify about the content of the will. The answer is no. In Texas, when no will is found, the court presumes that the testator revoked the will. Therefore, in this example, it is as if there is no will. Your property will pass via intestate succession.
(4) Even if you write a valid holographic will, two witnesses will need to testify in probate court that the handwriting in the will is your handwriting. The burden of proof will be on the person offering the will for probate. As we advance into the digital age, handwriting samples will become rarer and rarer. It is not crazy to believe that it may be difficult to find two people who are familiar with your handwriting.
Conclusion:
To sum up, it is possible to write your own holographic will in Texas. You must strictly adhere to the rules or your holographic will will be invalid. To review, a holographic will:
Although it is possible to draft your own holographic will, doing so can be risky. Making a mistake can lead to your will being rejected by the probate court. If you have a complicated estate or intend to leave your property to more than a few people, then it is easy to leave out property or people. Vague or illegible writing can open your will to costly challenges that will put a burden on your loved ones after you pass.
Any complications will lead to higher legal costs when your will is probated. Sorting out these complications during probate will cost much more than it would to pay an attorney to draft your will. The best way to prevent these potential problems is to hire a professional to assist you in planning your estate and to draft your will.
At the Law Offices of Gregg & Gregg, we have the legal knowledge to help you plan how your estate is distributed and protect your loved ones when you are no longer around to do so. We have the human wisdom to build a professional relationship with you that will leave you with no doubt about what will happen to your property when you pass. We will be there with you through the entire process from gathering information about your assets to ensuring that your documents are executed and ready to go when you pass.
If you have any questions about this article or want to set up a free consultation to start planning your estate, please contact us.
*Please note: This article is intended for educational purposes only and is not legal advice. This is a general overview of Texas law regarding holographic wills. We strongly recommend hiring a knowledgeable attorney to draft your will.
512-575-4262
