Texas Last Will and Testament Law


Wills and Estates – Last Will and Testament Law – Texas

This summary is not intended to be an all inclusive summary but does include many of the material matters dealing with Texas Wills.

Who May Execute a Will: Every person who has attained the age of eighteen years, or who is or has been lawfully married, or who is a member of the armed forces of the United States or of the auxiliaries thereof or of the maritime service at the time the will is made, being of sound mind, shall have the right and power to make a last will and testament. Sec 57.
 

Right to Disinherit: A person who makes a last will and testament may disinherit an heir direct the disposition of property or an interest passing under the will or by intestacy. Sec. 58.
 

Devises or Bequests to Trustees: A testator may validly devise or bequeath property in a will to the trustee of a trust established or to be established during the lifetime of the testator by the testator or by another person, or at the death of the testator by the testator’s devise or bequest to the trustee. However, exceptions are testator’s spouse, antecedent or descendent of the testator, or a person who is is related within the third degree by consanguinity or affinity to the testator, Sec. 58a.
 

Devises and Bequests That Are Void: A devise or bequest of property in a will to an attorney who prepares or supervises the preparation of the will or a devise or bequest of property in a will to an heir or employee of the attorney who prepares or supervises the preparation of the will is void. Sec. 58b.
 

Requisites of a Will: A last will and testament shall be in writing and signed by the testator in person and be attested by two or more credible witnesses above the age of fourteen years who shall sign their names thereto in their own handwriting in the presence of the testator. Sec. 59.
 

Revocation of Wills: A will may be revoked by a subsequent will, codicil, or declaration in writing, executed with like formalities, or by the testator destroying or canceling the will. Sec. 63.
Deposit of Will With Court During Testator’s Lifetime: A will may be deposited by the person making it, or by another person for him, with the county clerk of the county of the testator’s residence. Before accepting any will for deposit, the clerk may require such proof as shall be satisfactory to him concerning the testator’s identity and residence. The clerk, on being paid a fee of Three Dollars therefor, shall receive and keep the will, and shall give a certificate of deposit for it. All wills so filed shall be numbered by the clerk in consecutive order, and all certificates of deposit shall bear like numbers respectively.

How Will Shall Be Enclosed: Every will intended to be deposited with a county clerk shall be enclosed in a sealed wrapper, which shall have indorsed thereon “Will of,” followed by the name, address and signature of the testator. The wrapper must also be indorsed with the name and current address of each person who shall be notified of the deposit of the will after the death of the testator.

Index To Be Kept of All Wills Deposited: Each county clerk shall keep an index of all wills so deposited with him.

To Whom Will Shall Be Delivered: During the lifetime of the testator, a will so deposited shall be delivered only to the testator, or to another person authorized by him by a sworn written order. Upon delivery of the will to the testator or to a person so authorized by him, the certificate of deposit issued for the will shall be surrendered by the person to whom delivery of the will is made; provided, however, that in lieu of the surrender of such certificate, the clerk may, in his discretion, accept and file an affidavit by the testator to the effect that the certificate of deposit has been lost, stolen, or destroyed.

Proceedings Upon Death of Testator: If there shall be submitted to the clerk an affidavit to the effect that the testator of any will deposited with the clerk has died, or if the clerk shall receive any other notice or proof of the death of such testator which shall suffice to convince him that the testator is deceased, the clerk shall notify by registered mail with return receipt requested the person or persons named on the indorsement of the wrapper of the will that the will is on deposit in his office, and, upon request, he shall deliver the will to such person or persons, taking a receipt therefor. If the notice by registered mail is returned undelivered, or if a clerk has accepted a will which does not specify on the wrapper the person or persons to whom it shall be delivered, the clerk shall open the wrapper and inspect the will. If an executor is named in the will, he shall be notified by registered mail, with return receipt requested, that the will is on deposit, and, upon request, the clerk shall deliver the will to the person so named as executor. If no executor is named in the will, or if the person so named is deceased, or fails to take the will within thirty days after the clerk’s notice to him is mailed, or if notice to the person so named is returned undelivered, the clerk shall give notice by registered mail, with return receipt requested, to the devisees and legatees named in the will that the will is on deposit, and, upon request, the clerk shall deliver the will to any or all of such devisees and legatees.

Depositing Has No Legal Significance: These provisions for the depositing of a will during the lifetime of a testator are solely for the purpose of providing a safe and convenient repository for such a will, and no will which has been so deposited shall be treated for purposes of probate any differently than any will which has not been so deposited. In particular, and without limiting the generality of the foregoing, a will which is not deposited shall be admitted to probate upon proof that it is the last will and testament of the testator, notwithstanding the fact that the same testator has on deposit with the court a prior will which has been deposited in accordance with the provisions of this Code.

Depositing Does Not Constitute Notice: The fact that a will has been deposited as provided herein shall not constitute notice of any character, constructive or otherwise, to any persons to the existence of such will or as to the contents thereof. Sec. 71.

More Advanced Issues:

Bequest to Witness: Should any person be a subscribing witness to a will, and also be a legatee or devisee therein, if the will cannot be otherwise established, such bequest shall be void, and such witness shall be allowed and compelled to appear and give his testimony in like manner as if no such bequest had been made. But, if in such case the witness would have been entitled to a share of the estate of the testator had there been no will, he shall be entitled to as much of such share as shall not exceed the value of the bequest to him in the will. Sec. 61. In the situation covered by the preceding Section, the bequest to the subscribing witness shall not be void if his testimony proving the will is corroborated by one or more disinterested and credible persons who testify that the testimony of the subscribing witness is true and correct, and such subscribing witness shall not be regarded as an incompetent or non-credible witness under Section 59 of this Code. Sec. 62.

Contracts Concerning Succession: A contract to make a will or devise, or not to revoke a will or devise, if executed or entered into on or after September 1, 1979, can be established only by provisions of a will stating that a contract does exist and stating the material provisions of the contract. The execution of a joint will or reciprocal wills does not by itself suffice as evidence of the existence of a contract. Sec. 59A.

Voidness Arising From Divorce: If, after making a will, the testator is divorced or the testator’s marriage is annulled, all provisions in the will in favor of the testator’s former spouse, or appointing such spouse to any fiduciary capacity under the will or with respect to the estate or person of the testator’s children, must be read as if the former spouse failed to survive the testator, and shall be null and void and of no effect unless the will expressly provides otherwise. A person who is divorced from the decedent or whose marriage to the decedent has been annulled is not a surviving spouse unless, by virtue of a subsequent marriage, the person is married to the decedent at the time of death. Sec. 69.

Provision in Will for Management of Separate Property: The husband or wife may, by last will and testament, give to the survivor of the marriage the power to keep testator’s separate property together until each of the several distributees shall become of lawful age, and to manage and control the same under the provisions of law relating to community property, and subject to such other restrictions as are imposed by such will; provided, that any child or distributee entitled to any part of said property shall, at any time upon becoming of age, be entitled to receive his distributive portion of said estate. Sec. 70.

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