Texas Probate Code

Texas law recognizes three types

of wills. One is oral, sometimes
called a nuncupative or deathbed
will. The other two are written. A
will entirely in the deceased’s
handwriting is known as a holographic
will. A typewritten will (one
not entirely in the deceased’s handwriting)
is known as a formally
executed will.
Before either type of written will
can be admitted to probate, it must
be proven as the last will and
testament of the deceased. The
proof must come from the testimony
of a person familiar with the
deceased’s handwriting in the case
of a holographic will, or from an
actual witness in the case of a
typewritten will.
In Texas, there is a way to prove
written wills without the necessity
of testimony. The alternative is
known as a self-proving will. Contrary
to what the name implies, a
self-proving will is not a separate
and distinct type of will. Instead,
it is a holographic or typewritten
will with a particular type of affidavit
attached to it.
Self-proving wills have the obvious
advantages of being easier,
quicker and less expensive to prove.
Either a holographic or typewritten
will can be made self-proving by the
following procedure.
Holographic wills need no witnesses.
The law simply states that
the document must be entirely in
the deceased’s handwriting and
signed (or executed). No date is
necessary, but one should be included.
A holographic will may be made
self-proving, either at the time of
execution or at any time before the
Self-Proving Wills
VOLUME 3
maker dies. To do so, the maker
must execute and attach an affidavit
to the will stating that (1)
the foregoing instrument is the
maker’s last will, (2) the maker was
at least 18 years of age when the
will was executed (or, if under such
age, was lawfully married or a
member of the U.S. armed forces,
a member of an auxiliary thereof,
or a member of the Maritime
Service), (3) the maker was of
sound mind when the will was
signed and (4) the maker has not
revoked the will. The requirements,
but not the form, are
contained in the Texas Probate
Code, Section 60.
A typewritten will, on the other
hand, requires the signature of two
witnesses to be valid. (A witness
must be at least 15 years of age
and a nonbeneficiary of the will.)
A typewritten will can be made
self-proving either at the time of
execution or at any time before the
maker dies. An affidavit conforming
to the one described in Section
59 of the Texas Probate Code must
be executed and attached to the
will. (The prescribed form is reproduced
in Texas Wills, Center
publication 449.)
The self-proving affidavit is not
a part of the will. It merely serves
to admit the will to probate without
testimony. However, effective
September 1, 1991, the Boren
Amendment to Section 59 of the
Texas Probate Code provides that
a signature on a self-proving affidavit
operates as a signature on the
will if the will is unsigned. In such
cases, the will is no longer considered
self-proving. The one signature
cannot serve dual purposes.
The typewritten will should be
made self-proving at the time of
execution because the same two
persons who sign the will as witnesses
also must sign the affidavit.
It may be difficult to get the maker
and the two witnesses together once
the signing ceremony is finished.
If the same group cannot be reassembled,
the will must be reexecuted
with the persons serving
as witnesses signing the affidavit
also.
A self-proving will adds an extra
person to the signing ceremony.
The additional person must be
authorized by Texas law to administer
oaths. Article 26(1), (2) and
(3) of the Texas Revised Statutes
lists the qualified individuals.
Generally, the person will be a
notary public and referenced herein
as “notary.” To summarize, a
holographic will requires two persons
to make it self-proving–
the maker and the notary. A
typewritten will requires four
persons+the maker, the two witnesses
and the notary. In legal
terms, a man making a will is called
a testator; a woman is called a
testatrix. As mentioned earlier,
the Texas Probate Code contains
the recommended form for typewritten
wills. The contents, but not
the form, are provided for holographic
wills. Based on the two
statutes, a suggested form for
holographic wills appears on the
following page.
Texas residents have the unique
opportunity of facilitating probate
by making their wills self-proving.
A self-proving will does not require
any testimony to be admitted to
probate. At the same time, it does
not insulate the will from being
contested, revoked or amended just
as a will that is not self-proving.
Texas Wills, publication 449, may
be ordered from the Real Estate
Center for $10.
733
This is not a promulgated form but is offered for illustration only. Before
using this or any other
form, one should contact an attorney.
SELF-PROVING AFFIDAVIT
STATE OF TEXAS
COUNTY OF (County of Execution)
Before me the undersigned authority on this day personally
appeared_________________________
____________________________, known to me to be the testator (testatrix),
whose name is
subscribed to the foregoing will, who first being by me duly sworn, declared
to me that
the said foregoing instrument is his (her) last will and testament, that he
(she) had willing
made and executed it as his (her) free act and deed, that he (she) was at the
time of execution
eighteen years of age or over (or being under such age, was or had been
lawfully married,
or was a member of the armed forced of the United States or of an auxiliary
thereof or
of the Maritime Service), that he (she) was of sound mind at the time of
execution and
that he (she) has not revoked the will and testament.
______________________________
Testator (Textratrix)
Subscribed and acknowledged before me by the
said_______________________________________,
testator (testatrix),
this___________________________________________________________________
day of ____________________ A.D. _____________.
(Seal) (Signed)______________________________________
(official capacity of officer)