I am equally confident that most people do not realize that in the state of Texas a will is not effective if it is not probated.  In other words, just because Mom gave the home to brother in her will, if the will is not probated, then that provision is ineffectual.  Texas Probate Code Section 94 speaks to this provision specifically:

Except as hereinafter provided with respect to foreign wills, no will shall be effectual for the purpose of proving title to, or the right to the possession of, any real or personal property disposed of by will, until such will has been admitted to probate.

So that will that has been sitting on the cabinet “declaring” the home was given to you by Mom is not effective unless the has been probated in the state of Texas or the foreign will provisions of the Texas Probate Code apply.

If you and/or you family members decide they wish to probate the will, don’t sit on that decision too long.  Generally speaking, a will must be probated within in four (4) years of the death of the testator.  There is an exception to this four year rule but I will leave that for a later discussion.

Bottom Line:  A will must be probated to be effective and, generally speaking, the will must be admitted to probate within four (4) years of the death of your loved one.

Attested Wills

The “attested” will is the type of will that everyone thinks of when someone mentions they have a will.  It is a writing and is signed by the testator (the person making the will) or by a person he/she directs to sign in the presence of the testator.  It is attested by two or more credible witnesses above the age of 14 who shall sign their names in their own handwriting in the presence of the testator.

It is common to have a “self-proving” affidavit also signed by the witnesses.  The affidavit essentially states the witnesses witnessed that the Testator declared he/she was signing his/her Last Will and Testatment, the testator was over the age of 18, of sound mind, and each witness was over the age of 14.  The self-proving affidavit makes it possible to admit the will without having to prove it was executed correctly.

If there is no self-proving affidavit, the will is not invalid.  It only requires that in order to probate the will, witnesses(es) will be required to appear in order to prove the will was properly executed and in accordance with the statute.

Holographic Wills (handwritten wills)

Texas does recognize handwriten wills.  A hand written will must be wholey in the handwriting of the testator.  Witnesses are not required to sign the handwritten will; however, in order to admit the handwritten will, two witnesses are required to prove it is the testator’s handwriting.

Oral Wills (Nuncupative Wills)

Texas used to recongize oral wills in limited circumstanes.  In 2007, the Texas legislature replealed the statutes allowing for Nuncupative Wills.

Think back to the time you and your now ex-spouse went to the family lawyer.  The two of you decided to give each other everything in case one of you died.  Now the two of you have divorced.  If you pass away without changing your will, does the divorce impact the provisions in the will?  Well, the Texas Legislature has made a default rule for you.  If after making a will you get divorced and pass away, the Texas courts will treat your ex-spouse as if she had predeceased you.  In other words, your ex-spouse will not take under the will.  In 2007 the Texas Legislature amended the statute to also include relatives of the ex-spouse who are not related to the testator (the person who wrote the will and died).

Take note:  This is the Texas rule.  There have been exceptions made and should be considered.  One clear exception is in certain Federal ERISA plans.  Since it falls under federal laws, the federal laws apply and the divorce does not ‘nullify’ the beneficiary.  In other words, if your ex-spouse is the name on that beneficiary card he/she may take those benefits despite your divorce.

Why leave all these questions up in the air?  There is an easy solution — change your beneficiaries and update your will when major changes occur in  your life.  And yes, a divorce would qualify as a major change in your life.

Texas Probate Code Section 69

Sec. 69.  WILL PROVISIONS MADE BEFORE DISSOLUTION OF MARRIAGE.  (a)  In this section, “relative” means an individual who is related to another individual by consanguinity or affinity, as determined under Sections 573.022 and 573.024, Government Code, respectively.

(b)  If, after making a will, the testator’s marriage is dissolved, whether by divorce, annulment, or a declaration that the marriage is void, all provisions in the will, including all fiduciary appointments, shall be read as if the former spouse and each relative of the former spouse who is not a relative of the testator failed to survive the testator, unless the will expressly provides otherwise.

(c)  A person whose marriage to the decedent has been dissolved, whether by divorce, annulment, or a declaration that the marriage is void, is not a surviving spouse unless, by virtue of a subsequent marriage, the person is married to the decedent at the time of death and the subsequent marriage is not declared void under Section 47A of this code.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1979, 66th Leg., p. 1746, ch. 713, Sec. 12, eff. Aug. 27, 1979; Acts 1995, 74th Leg., ch. 642, Sec. 2, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 1302, Sec. 5, eff. Sept. 1, 1997.

Amended by:

Acts 2007, 80th Leg., R.S., Ch. 1170, Sec. 4.02, eff. September 1, 2007.

Texas State Statutes, Probate Section 69

I am equally confident that most people do not realize that in the state of Texas a will is not effective if it is not probated.  In other words, just because Mom gave the home to brother in her will, if the will is not probated, then that provision is ineffectual.  Texas Probate Code Section 94 speaks to this provision specifically:

Except as hereinafter provided with respect to foreign wills, no will shall be effectual for the purpose of proving title to, or the right to the possession of, any real or personal property disposed of by will, until such will has been admitted to probate.

So that will that has been sitting on the cabinet “declaring” the home was given to you by Mom is not effective unless the has been probated in the state of Texas or the foreign will provisions of the Texas Probate Code apply.

If you and/or you family members decide they wish to probate the will, don’t sit on that decision too long.  Generally speaking, a will must be probated within in four (4) years of the death of the testator.  There is an exception to this four year rule but I will leave that for a later discussion.

Bottom Line:  A will must be probated to be effective and, generally speaking, the will must be admitted to probate within four (4) years of the death of your loved one.