How to make a will in Texas

Everything you need to know about Texas wills

Elissa

By

Elissa Suh

Elissa Suh

Personal Finance Editor

Elissa Suh is a personal finance editor at Policygenius in New York City. She has researched and written extensively about finance and insurance since 2019, with an emphasis in estate planning and mortgages. Her writing has been cited by MarketWatch, CNBC, and Betterment.

Updated August 27, 2021|5 min read

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A last will and testament is a legal document that contains instructions about who gets your belongings when you die and lets you choose a guardian for a minor child. A will is the first step to creating a solid estate plan, which can also include a durable power of attorney and a living trust. You need a will in Texas to make sure your loved ones get the assets you want them to have — otherwise, a court may determine who gets what according to state law.

Live in another state? See our guide to making a will in your state.

Making a will in Texas

Here are the most common ways to make a Texas will:

  • Hire an attorney

  • Use an online will service

  • Make one on your own by filling out a form or writing one from scratch

Related guide: How to write a will in nine steps.

It's perfectly legal to make a will without a lawyer in Texas, like through an online will-making service, which is often cheaper. An estate attorney can charge as much as hundreds or thousands of dollars to prepare your will and the cost could be higher in the city than it would be in a smaller town. However, you may benefit from hiring a lawyer to draft your will in Texas if you have a complex estate or many assets. (See when you should hire an estate attorney.)

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Using a Texas will form

You may be able to find a free form to create a Texas last will and testament. Keep in mind that free wills are typically broad, one-size-fits-all forms, which may leave more chances for the document to be challenged in court after you die. Additionally, these templates may not allow you to nominate a guardian or create a trust (testamentary trust) through your will.

You can also make a will online with a service that guides you through the process. Just make sure it follows the requirements for a will to be valid under Texas law. 

(When you make personalized Texas will with Policygenius using attorney-approved tools, you'll also get an optional trust and a power of attorney as part of your estate plan.)

Handwritten wills that don’t require witnessing are called holographic wills, and they are legal under Texas law. The entire will must be written in the testator’s handwriting; it cannot be partially typed. (§251.052) [1]

Last will and testament requirements

In Texas, the testator (person writing the will) must be at least 18 years old, a married individual, or a member of the armed forces. They must also be of sound mind and memory, which means they have testamentary capacity. They can use the will to name a beneficiary to receive their assets and personal property, and appoint an executor to execute the terms of the will. (§251.001)

Texas does not explicitly require an executor to be a certain age, but the court is allowed to declare someone unsuitable, which could happen if the executor is not of the age of majority. The named executor cannot be a convicted felon unless they have been pardoned, and out-of-state executors must find a co-executor who is a Texas resident. (§304.003)

Every will must be signed in the presence of the testator by two witnesses who are at least 14 years old. Witnesses can also be beneficiaries of the will, but they may have to forfeit part or all of their inheritance if there are no disinterested witnesses. (§251.051)

Do Texas wills have to be notarized?

You do not need to notarize a will in order for it to be valid in Texas. Notarization cannot take the place of proper witnessing outlined above. 

After you die, at least one witness must appear in court to verify your will, but you can include a self-proving affidavit to prevent this from happening and greatly ease the probate process for your beneficiaries after you've passed away. The self-proving affidavit must be notarized; you’ll have pay a nominal fee to a notary public. (§251.101)

Learn how to get a self-proving affidavit.

Changing a will

If you want to make changes to a Texas will, you can do so by adding a codicil, or writing a new will and destroying the old one. Keep in mind that the codicil must be signed and witnessed again in order to be valid. Wills can be changed up until the testator’s death. 

Filing a will in Texas

During the testator's lifetime, a Texas will can be filed in the county where the testator resides.

After the testator's death, the will can be filed with the local court and probated within four years from the day they died. Heirs and beneficiaries must wait approximately two weeks after filing before they can have a hearing with the probate court.

Eventually Texas wills become part of the public record

Dying without a will

If you die without a will in Texas, the court determines who receives the estate assets based on laws of intestate succession. (You can use Policygenius to create a will today, so the courts don't decide what happens to your property.)

Learn more about what happens when you die without a will.

Texas probate and intestacy law

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.

If the decedent had a surviving spouse, community property assets 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 a surviving spouse and: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 and all property is separate property, then the estate will pass along in the following order of intestate succession:

  • 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 estate assets, 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. (§201.001-003)