A Texas will is the document that tells a Texas probate court who receives your property, who should serve as executor, and who should raise your minor children if both parents are gone. Texas has its own rules for how a will must be signed, when a handwritten will is valid, how a will becomes “self-proved,” and what happens to community and separate property when someone dies without one. Those rules live in the Texas Estates Code, and they differ in meaningful ways from the rules in California and in the other states where Michael Holmes is licensed.
This page is the Holmes Law overview of Texas wills: the execution formalities, holographic and self-proved wills, intestate succession, how a will affects probate, and how will contests work. If you are deciding whether a will-based plan or a trust-based plan is the right fit, the companion page on Texas traditional wills walks through that decision in detail. For the full picture of estate planning in Texas, start at the Texas estate planning hub.
What Makes a Will Valid in Texas
Texas does not require magic words, a lawyer, or a notary for a will to be valid. It does require capacity and a small set of formalities, and a will that misses one of them can fail entirely, leaving the estate to pass under the intestacy statutes instead of under the testator’s wishes.
Who can make a Texas will
Under Texas Estates Code § 251.001, a person of sound mind may make a will if, at the time of signing, the person is 18 or older, is or has been married, or is serving in the armed forces of the United States, its auxiliaries, or the maritime service. Sound mind in this context means testamentary capacity: understanding the business being done, the general nature and extent of one’s property, the natural objects of one’s bounty, and how those elements fit together into a plan. A diagnosis alone does not remove capacity, and a person can have capacity to sign a will on a good day even while experiencing cognitive decline.
The formal requirements of an attested will
Texas Estates Code § 251.051 sets the baseline. Unless the will is entirely handwritten, it must be:
- In writing.
- Signed by the testator in person, or by another person on the testator’s behalf, in the testator’s presence and under the testator’s direction.
- Attested by two or more credible witnesses who are at least 14 years old and who subscribe their names to the will in their own handwriting in the testator’s presence.
Notice what is not required. Texas does not require the witnesses to sign in each other’s presence, and a notary is not needed to make the will valid. The notary becomes important only for the self-proving affidavit discussed below.
Interested witnesses
Texas treats a gift to an attesting witness with suspicion. Under Estates Code § 254.002, if a witness is also a devisee and the will cannot be proved without that witness’s testimony, the gift to that witness is void except to the extent of what the witness would have inherited had there been no will. A will signed with disinterested witnesses avoids the problem entirely, and Holmes Law always recommends that approach.
Holographic Wills in Texas
Texas is one of the states that recognizes holographic wills. Under Estates Code § 251.052, a will written wholly in the testator’s handwriting does not need attesting witnesses. That is a significant difference from states that refuse to recognize unwitnessed wills at all.
A Texas holographic will still has to be proved when it is offered for probate. Unless it is self-proved, the handwriting and signature are typically established through testimony from two witnesses who are familiar with the testator’s handwriting. Estates Code § 251.107 also allows a holographic will to be made self-proved by attaching an affidavit of the testator.
Holographic wills are legally possible, but they are a common source of litigation. Handwritten documents tend to be ambiguous about the residuary estate, omit an executor, leave out independent administration language, and fail to address what happens if a beneficiary dies first. A holographic will that says “I leave everything to my wife” may still send a family into dependent administration and an heirship proceeding if the wife predeceases. Handwriting is a legal safety valve, not a plan.
Self-Proved Texas Wills
A self-proved will is one that includes an affidavit, signed by the testator and the witnesses before a notary, confirming that the will was properly executed. Texas authorizes self-proving affidavits in Estates Code §§ 251.101 through 251.107, including a statutory form for an affidavit made at the time the will is signed and a separate path for a will that is later made self-proved.
The practical benefit is substantial. When a will is self-proved, the court can admit it to probate on the affidavit rather than requiring the executor to locate the witnesses and bring them in to testify about the signing. Years after signing, witnesses may have moved, forgotten, or died. A self-proving affidavit removes that problem. It does not make the will immune to challenge, but it shifts the evidentiary starting point in favor of validity.
Every will Holmes Law prepares for Texas clients is designed to be executed with a self-proving affidavit.
What Happens Without a Will: Texas Intestacy
When a Texas resident dies without a valid will, the Estates Code decides who inherits. The result depends on whether the property is community property or separate property, and on whether the decedent had children from outside the marriage. Many families are surprised by how these rules work.
Community property
Under Estates Code § 201.003, if a married person dies intestate and all of the decedent’s surviving children and descendants are also children or descendants of the surviving spouse, the surviving spouse takes the decedent’s half of the community estate. If the decedent has a child or descendant who is not also the surviving spouse’s, the decedent’s half of the community passes to the decedent’s children and descendants, and the surviving spouse keeps only his or her own half. In a blended family, that can mean a stepparent and adult stepchildren co-owning the family home.
Separate property
Separate property follows a different pattern under Estates Code § 201.002. If the decedent leaves a spouse and children or descendants, the spouse takes one-third of the separate personal property and a life estate in one-third of the separate real property, while the children or descendants take the rest. If there are no children or descendants, the spouse takes all of the separate personal property and half of the separate real property, and the other half of the land passes to the decedent’s parents, siblings, or their descendants under § 201.001. A life estate in one-third of land is a difficult form of ownership to manage and sell, which is one of the more practical reasons Texans with separate real estate should have a will.
Heirship proceedings
Without a will, there is no document naming heirs. Texas generally requires a proceeding to declare heirship under Estates Code chapter 202, which typically involves an attorney ad litem appointed to represent unknown heirs and testimony from disinterested witnesses about the family history. For a small estate, the small estate affidavit may be available when the estate’s value, excluding the homestead and exempt property, does not exceed $75,000. For larger estates, the heirship route adds steps that a well-drafted will would have avoided.
How a Texas Will Moves Through Probate
A will does nothing on its own. It must be offered for probate in the county where the decedent lived, and the court must admit it before the executor has authority. Texas makes that process more workable than many states, largely because of independent administration under Estates Code chapters 401 and 402. A will can direct that the estate be administered independently, meaning the executor handles most tasks without court approval after the will is admitted and letters are issued.
Timing matters. Under Estates Code § 256.003, a will generally may not be admitted to probate after the fourth anniversary of the testator’s death unless the person offering it shows he or she was not in default for failing to offer it sooner. Even then, a late will is usually admitted only as a muniment of title, not with a full administration. Families who put the will in a drawer and wait can lose options.
When there are no unpaid debts other than those secured by liens on real estate, Texas also allows a will to be admitted as a muniment of title under Estates Code chapter 257. The court’s order itself serves as the evidence of title, and no executor is appointed. When a full administration is needed, the executor can often file an affidavit in lieu of inventory under § 309.056 rather than a public inventory listing every asset. The step-by-step probate walkthrough appears on the Texas traditional wills page.
Changing or Revoking a Texas Will
A Texas will can be revoked by a later will or codicil that is executed with the same formalities, or by physically destroying or canceling the will with the intent to revoke it. Estates Code § 253.002 governs these methods. Handwritten cross-outs on a typed will are a frequent source of confusion: they may or may not be effective, and they can raise questions about whether the whole will was revoked. The safer course is a properly executed codicil or a new will.
Divorce also matters. Under Estates Code § 123.001, when a marriage is dissolved after the will is signed, provisions in favor of the former spouse and designations of the former spouse as executor or trustee are generally treated as though the former spouse had died, unless the will expressly provides otherwise. Relatives of the former spouse who are not also relatives of the testator are treated the same way. Parallel rules in § 123.052 reach certain nontestamentary transfers, including provisions in a revocable trust.
Joint and contractual wills
Texas law does not presume that spouses who sign a joint will or mirror-image wills intended to give up the right to change them. Under Estates Code § 254.004, a contract not to revoke a will must be stated in the will or in a separate writing, and the mere fact that wills are joint or reciprocal does not create a contract. Holmes Law generally recommends separate wills for each spouse, which keeps each person’s ability to update the plan after the first death.
Will Contests in Texas
A will contest is a lawsuit claiming the will is invalid. The common grounds in Texas are lack of testamentary capacity, undue influence, fraud, forgery, improper execution, and revocation. Contests are fact-intensive and often turn on medical records, the circumstances of signing, and who was involved in preparing the will.
The two-year contest period
Under Estates Code § 256.204, an interested person generally may contest the validity of a will within two years after the will is admitted to probate. For claims of forgery or other fraud, the two-year period runs from discovery of the forgery or fraud. Separate provisions address persons who were incapacitated during the period. A will that has not yet been admitted can be opposed directly in the probate proceeding before it is admitted.
No-contest clauses
Texas enforces forfeiture, or “in terrorem,” clauses in wills, but with an important limit. Under Estates Code § 254.005, a forfeiture clause is unenforceable against a person who shows that probable cause existed for bringing the action and that it was brought and maintained in good faith. A no-contest clause is a meaningful deterrent in the right plan, but it will not stop a good-faith challenge with a reasonable basis.
Reducing contest risk
Contest risk cannot be eliminated, but it can be reduced. A self-proved will, disinterested witnesses, a record of the testator’s reasons for unequal gifts, keeping beneficiaries out of the room during planning meetings, and a plan that reflects consistent intent over time all help. When capacity may be questioned, timing the signing and documenting the meeting carefully are especially important.
What a Texas Will Does Not Control
A will governs only the probate estate. Many of the most valuable assets Texans own pass outside the will:
- Real estate conveyed by a transfer on death deed under Estates Code chapter 114. A later will cannot revoke a TOD deed, and an agent under a power of attorney cannot create one.
- Community property with right of survivorship agreements under Estates Code chapter 112, which let spouses leave community assets directly to the survivor.
- Life insurance, annuities, IRAs, and 401(k)s that pass by beneficiary designation.
- Bank accounts with payable-on-death designations and brokerage accounts with transfer-on-death registrations.
- Assets titled in a revocable or irrevocable trust.
Because these designations override the will, a Texas will review should always include a review of beneficiary designations and deeds. A will that divides the estate equally among three children does not accomplish that goal if one child is the sole beneficiary of the largest retirement account.
Texas Wills for Community Property Households
Texas is a community property state. Each spouse owns one-half of the community estate and can dispose of only that half by will. A spouse cannot, by will, leave the other spouse’s half of the community to anyone. Planning therefore starts with an inventory of which assets are community and which are separate property, such as property owned before marriage or received by gift or inheritance.
The distinction also affects taxes. For federal income tax purposes, community property can receive a new basis on both halves at the first spouse’s death, which is often called the double step-up. How spouses title assets and whether they use survivorship agreements can affect how that benefit plays out, so the will and the titling should be designed together.
Where a Texas Will Fits in a Broader Plan
For many Texans, a will is the right primary document. Independent administration, the affidavit in lieu of inventory, and TOD deeds make a will-based plan practical. Other families benefit from a Texas revocable trust with a Texas pour-over will as a backstop, particularly those with real estate in other states, privacy concerns, or a need for detailed management of assets for children. A complete plan also typically includes a statutory durable power of attorney, a medical power of attorney, a directive to physicians, a HIPAA authorization, and appointments of guardians for minor children. For incapacity and long-term care concerns, see the Texas elder law page.
Frequently Asked Questions
Does a Texas will need to be notarized?
No. A will signed by the testator and two witnesses who are at least 14 is valid without a notary under Estates Code § 251.051. The notary is needed only for the self-proving affidavit, which is strongly recommended because it allows the will to be admitted without witness testimony.
Is a handwritten will valid in Texas?
Yes, if it is written wholly in the testator’s handwriting and signed. Estates Code § 251.052 allows holographic wills without witnesses. It must still be proved in court, usually through handwriting testimony, unless it is made self-proved under § 251.107.
Does my spouse automatically inherit everything in Texas if I die without a will?
Not always. Your spouse takes your half of the community property only if all of your children and descendants are also your spouse’s. Your separate property is divided between your spouse and your children or other relatives under Estates Code § 201.002. Blended families are the most likely to be surprised.
How long do I have to probate a will in Texas?
Generally four years from the date of death under Estates Code § 256.003. After that, a will can be admitted only in limited circumstances and usually only as a muniment of title.
How long does someone have to contest a Texas will?
Generally two years after the will is admitted to probate, under Estates Code § 256.204. For forgery or other fraud, the two years run from discovery.
Is a will from another state valid in Texas?
Generally, a will validly executed under the law of the place where it was signed, or where the testator was domiciled, can be admitted in Texas. Even so, a will drafted for another state may lack independent administration language and Texas-specific community property provisions, so a review after moving to Texas is worthwhile.
Speak With a Texas Will Attorney
Holmes Law prepares Texas wills remotely for clients across the state, from the Houston and Dallas–Fort Worth metros to the Hill Country and West Texas. Michael Holmes is licensed in Texas and handles each matter personally, from the initial conversation through signing with witnesses and a notary. To discuss your Texas will, contact Holmes Law to schedule a consultation. You can also learn more about estate planning generally.