How to make a will in Texas

A guide to Texas probate laws.

Elissa

Elissa Suh

Published June 12, 2020

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Who can write a will in Texas?

In Texas, anyone 18 years old or older, or who is married or a member of the armed forces, can write a will in Texas.

What are the requirements for witnessing a will in Texas?

Every will must be signed in the presence of the testator by two witnesses who are at least 14 years old.

Can witnesses be beneficiaries of the will in Texas?

Yes, but they may have to forfeit part or all of their inheritance if there are no disinterested witnesses.

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What are the requirements for choosing an executor in Texas?

  • Cannot be incapacitated or a convicted felon unless they have been pardoned, or a corporation not authorized to act in Texas
  • Out-of-state executors who are not permanent residents or citizens must have a co-executor who is a resident of Texas

Texas does not explicitly require the executor or personal representative to be a certain age, but the court is allowed to declare someone unsuitable, which is likely to happen if the executor is not of the age of majority.

Can you create a holographic will in Texas?

Yes, Texas law allows for a holographic will but it must be written entirely in the testator’s handwriting.

Is Texas a community property state?

Yes, Texas is a community property state.

Separate property is property acquired by a spouse before marriage or through an inheritance or gift during marriage. All other property, acquired by either spouse during the marriage is considered community property.

Laws of intestacy in Texas

In Texas, when there is no will, the court determines who receives the intestate estate based on laws of intestate succession. (You can download the Policygenius app to create a will today, so the courts don't decide what happens to your property.)

If the decedent had a surviving spouse, community property will be distributed in the following manner:

If the decedent is survived by:Surviving spouse's share of community property
No childrenEverything
Children from the surviving spouseEverything
Children from someone other than surviving spouseOne half

Separate property will be distributed in the following manner:

If the decedent is survived by:Separate personal propertySeparate real property
Children1/3 to the spouse and 2/3 to the childrenAll to the children, but the spouse has a life estate in 1/3 of the property
No childrenEverything to the spouse1/2 to the spouse and 1/2 to the decedent's parents, or siblings if they are deceased

Otherwise, when there is no surviving spouse or children, all property is separate property and then the intestate estate will pass along in the following order:

  • Parents, but if the parents have passed away, then their share will be divided equally among the decedent’s siblings
  • Siblings, or their children
  • Grandparents, or their descendants (aunts/uncles, cousins)

For someone to receive the estate, there must not be anyone left in the category above them. If an inheritor is dead, then their share typically passes to their children by per stirpes designation.

Filing the will in Texas

During the testator’s lifetime, the will can be filed in the county where the testator resides. After the testator’s death, the will must be filed for probate within four years from the date of death. Heirs must wait approximately two weeks after filing before they can have a hearing with the probate court.

Estate administration without probate in Texas

When there is no executor, the court must prove the will, but it may determine that there is no need to administer the estate if there are no unpaid debts, besides a mortgage or other real property liens, and the court sees no reason to proceed with probate. This is called muniment of title, a unique feature of Texas estate law.

  • Small estate affidavit: Only available for intestate estates, if at least 30 days have passed since the decedent’s death, and there is no petition for appointment of a personal representative (letters testamentary have not been granted)
  • Threshold for small estates: $75,000, excluding homestead and certain personal property, like home furnishings and up to two firearms

Don’t live in Texas? Learn how to make a will in your state.

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About the author

Personal Finance Editor

Elissa Suh

Personal Finance Editor

Elissa is a personal finance editor at Policygenius in New York City. She writes about estate planning, mortgages, and occasionally health insurance. In the past she has written about film and music.

Policygenius’ editorial content is not written by an insurance agent. It’s intended for informational purposes and should not be considered legal or financial advice. Consult a professional to learn what financial products are right for you.

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