Collin County Living Well Magazine May/June 2020 | Page 17
PLANNING DURING
UNCERTAIN TIMES
I
n uncertain times, thoughts sometimes turn to what will
happen with your estate after you die. Many people
know that it is important to have a Will, but dislike
discussing death, so Wills are often not considered until
there is a crisis.
An appropriately drafted and executed Will not only
states who receives assets after death, but can also control
distribution to beneficiaries receiving public benefits so they
maintain their eligibility for the benefits, appoint a guardian
for minor children, and provide for contingencies if the
people named have predeceased you, among other things.
In Texas, you have full authority in a properly drafted and
executed Will to include or exclude anyone you choose.
No matter what your Will says, though, your wishes are
only followed if the Will meets legal requirements. The
best way to ensure your Will is valid and your wishes are
followed is to consult with a professional – an experienced
estate planning or elder law attorney.
In Texas, any person of sound mind has the right to make
a Will, if the person is 18 years of age or older, or, if
not yet 18, is or has been married or is a member of the
armed services. The person who makes a Will is called a
testator. A Will must be in writing, signed by the testator
or in the testator’s presence and at the testator’s direction,
and attested (signed) in the testator’s presence by two or
more credible witnesses who are at least 14 years of age.
If a Will is self-proved, it may be admitted to probate court
without the testimony of the witnesses. To be self-proved,
the Will must have an affidavit subscribed and sworn to by
the testator and the witnesses before a notary public. While
it is possible in some rare circumstances, under recent
emergency orders or with an online notary, for the notary
to be observing the signing electronically, standard law
requires the witnesses to be in the physical presence of the
testator. In these days of COVID-19 contagion concerns,
though, it is not always advisable for a testator to be in the
presence of two witnesses.
One of the many things we have learned from our collective
experience with COVID-19 is that we do not know what is
around the next corner. We cannot plan for every event that
life holds for us. Should you find yourself without the ability to
meet with an attorney or have your Will properly witnessed
and notarized, you should know the essential elements
required to create a valid holographic Will in Texas.
A holographic Will is a Will that is written entirely in
the testator’s handwriting and signed by the testator. All
By Leu & Peirce, PLLC
handwriting on the document must be the testator’s and
must be legible. A typed document or one written in
someone else’s handwriting, even if signed by the testator,
must have two witnesses to be a valid Will. However, a
holographic Will does not require witnesses. After it is
created, a holographic Will can be made self-proved at
any time during the testator’s lifetime through an affidavit
signed by the testator in front of a notary public, stating
that the document is the testator’s Will, the testator was of
sound mind, was over the age of 18 or was married or in
the military, and that the testator has not revoked the Will.
If you are unable to meet with a professional and execute
a formal Will with witnesses and a notary public, then a
holographic Will can bridge you through difficult times.
When writing your holographic Will, it must be clear
that your intent is to transfer, convey, or dispose of your
property upon your death through the use of phrases such
as “upon my death” or “when I die.” It is not required
that you include the date on your holographic Will, but it
is certainly advisable. As long as your holographic Will
is written wholly in your handwriting, signed by you, and
indicates your intent is to transfer, convey, or dispose
of your property upon your death, you have met the
essential requirements for creating a valid holographic
Will in Texas.
Remember that a Will is only part of the legal documents
you need to protect yourself and your assets, so talking with
an attorney should still be on your list. Until that is possible,
though, a holographic Will may ease your mind.
Lori Leu, Erin Peirce, and Lauren Olson are Elder Law attorneys with Leu & Peirce, PLLC
located in Plano, Texas. They can be reached at 972-996-2540.
COLLIN COUNTY Living Well Magazine | MAY/JUNE 2020
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