The Requirements of a Holographic Will in Texas
To properly provide for your family after your death a Holographic Will is a limited option that ensures your hard earned estate passes by your wishes and not by Intestate succession. A Holographic Will in Texas requires the following elements:
- The Will must be in writing.
- The Will must be entirely in the Testator’s hand.
- The Will must be signed by the Testator.
- The Will must have Testamentary Disposition (specifically states who gets what).
- The Will must have Testamentary Nature (intent to make a gift at death which is irrevocable after death).
Though unadvisable, this is one way to leave your property go to whom you want upon death. Holographic Will can be tricky, and if it is not done properly the entire estate could pass Intestate, which means the State and not you decide where you property goes after your death.
The Holographic Will must be in the complete handwriting of the testator (person who is making the Will). Texas follows the Rule of Surplusage: this states that any part of the Holographic Will that is not in the testator’s handwriting will be ignored completely and stricken from the Will. Word such as “bequeath, I devise, I give” must be in the testator’s handwriting to show both (1) the testamentary disposition and (2) the testamentary nature/intent.
Texas only allows Holographic Wills to be valid if the entire Will is in the testator’s handwriting and the Will must be signed by him/her. The “signing” can be an X or some identifying mark given from the testator and does not have to be his specific name if illiteracy is involved. If an individual wishes to draw an X because of his/her illiteracy or weakness, it still may be valid in probate.
A Holographic Will is an easy way to ensure your possessions are given to the right people, your estate is divided equally among your surviving children, or all of your property goes directly to your spouse. Holographic Wills can be written on anything and still be probated in court if the author follows all of the guidelines in the Texas Statute 251.052 in the Estate Code.
To fulfill a Holographic Will the testator must describe the property he wishes to give, then describe the person or persons the testator wishes to receive the property. The testator must sign his name or other identification marker at the end of the handwritten Will. It is safe to date the Holographic Will as well to give more evidence of its truthfulness. Additionally, the Holographic Will does not have to be attested to by two witnesses such as in the case of another Will.
A Holographic Will may ensure your property is given by your command and not the State’s, but if not proposed and executed correctly, the whole Will may not be invalid. It is wise to contact an experienced attorney and have proposed a standard typed and witnessed Will with a self-proving Affidavit that ensures your estate is divided and given according to your wishes. It is not wise to take the cheap path when planning your estate, but if you have no other choice a Holographic Will should be looked at as a last resort to ensure your possessions reach the destination you wish. For large to moderate estates a more prudent course of action to ensure your intent is served is to create a revocable trust or a self-proving affidavit attached to a formal Will.
These methods, if done correctly, will ensure that no interested party can contest your Will during probate as a proper Will is more iron clad than a Holographic Will. A Holographic Will should only be used as a last option by the testator to cause his property to pass according to the author’s intent and specific wishes.