Learn about the Texas probate process for wills, from validation to asset distribution, and why proper planning ensures your wishes are honored.
1. What Makes a Will Valid in Texas?
In Texas, a will must meet a few legal requirements to be considered valid. A typed will needs to be signed by the Testator/Decedent(the person making it), there are exceptions for persons with impairments, and witnessed by two people who aren’t receiving anything from the will. There are specific rules if the witness is named in the Will to receive something. Consulting with an attorney is important in that situation. If it includes a self-proving affidavit, a notarized statement signed by the testator and both witnesses, it can make the probate process much smoother by avoiding the need to track down witnesses later.
Texas also accepts handwritten wills, known as holographic wills, as long as the entire document is hand written and signed by the testator. For individuals with impairments, there are exceptions that may allow someone else to sign under specific conditions, but those situations should always involve legal guidance.
2. Can You Use an Out-of-State or Foreign Will in Texas?
Yes. If a will was created in another state, another country, or written in a different language, it can still be probated in Texas, as long as it meets the legal requirements of the place where it was originally made. However, if the person who passed away owned real estate outside of Texas, probate will need to be opened in that other jurisdiction as well, once it’s been established in the appropriate Texas county.
3. Why Having a Will Matters
Even if you’ve already set up estate planning tools like transfer-on-death accounts or named beneficiaries on life insurance, having a will is still essential. Think of it as your safety net, it covers anything those tools might miss.
A will ensures:
- Your property goes to the people you choose. You can name exactly who should receive what. Even if you’re not leaving something to certain family members, it’s important to list them so the court knows you didn’t overlook them.
- Someone you trust is in charge. You can name an executor to handle your estate—and name backups in case they’re unable to serve. You also get to decide if they’ll need to post a bond or have court oversight.
- All your property is accounted for. Don’t just list the obvious things like your house and car. If you forget to mention other assets, it could cause confusion or complications later.
4. What Happens If There’s No Will?
If someone passes away without a will, it does make things more complex. In most cases, the family will need to open a probate case to ask the court to appoint someone to handle the estate and determine who the legal heirs are.
In some situations, property can be transferred without full probate by using Affidavits of Heirship, which must be signed by two people who aren’t inheriting anything. These affidavits are filed with the county where the property is located, but whether they work depends on the specifics of the case.
There’s also an option called a Small Estate Affidavit, which can be used when there’s no will and the value of the personal property is under $75,000. This shortcut only applies if the real estate involved is a homestead and is being inherited by a surviving spouse or minor child.
5. Local Wills Resources
Alamo Area Council Of Governments (AACOG) 2700 NE Loop 410, Suite 101 San Antonio, TX 78217 (210) 362-5200 Transfer on Death Deed
Catholic Charities Archdiocese of San Antonio Caritas Legal Services 110 Bandera Rd San Antonio, TX 78228 (210) 433-3256 Enhanced Life Estate Deed (known as Ladybird Deed)
Texas RioGrande Legal Aid (TRGLA) 2929 Mossrock Suite 116, San Antonio, TX 78230 (956) 996-8752 San Antonio Legal Services Association (SALSA Will Clinic) www.sa-lsa.org (210) 678-8100
San Antonio Bar Association 126 E Nueva St 3rd Floor, San Antonio, TX 78204 (210) 227-8822
Disclaimer
The information provided in this article is for informational purposes only and relates to Texas only and is not intended to constitute legal advice or create an attorney-client relationship. Every situation is unique, and there is no one-size-fits-all solution for estate planning or related matters. You should always consult a duly licensed attorney competent to practice law in your jurisdiction before making any legal decisions. Every state has different estate planning laws.