Can I prepare my own will?

There are two reasons I would not recommend that you prepare your own will. The first is that any problem with the language of the will or the way it was executed could cause the eventual probate to be extremely costly and time-consuming. The flat fee charged by most attorneys for wills is minimal compared to the hourly fees that probate attorneys typically charge for their services, and a difficult probate can often require many more hours of work by the probate attorney than a simple probate.

The second reason is that following the instructions provided by will software or other will forms is no substitute for a lengthy discussion with an attorney before you make any decisions. The attorney’s job is to provide advice and counseling to his or her clients based on their particular circumstances as they exist at the time (and based on future possibilities that the clients would never have considered if the attorney had not asked, “What if…?”).

Although the legal requirements in Texas for executing a will, which are set forth below, are pretty simple, there are many additional issues you will need to discuss with your attorney before you sign a will. I have included several of these issues below as well.

    1. Legal Requirements in Texas for Executing a Will
        1. Legal Capacity to Execute a Will
          Texas law provides that every person of sound mind who is at least 18 years of age, or is married or in the U.S. Armed Forces, has the right and power to make a will.
        2. Signing and Witnessing of Wills
          Although Texas law recognizes holographic wills that are entirely handwritten and have no witnesses, the following requirements apply if you are signing a typewritten will:

          1. The will must be signed by the person making the will (the “testator”
            if a man or the “testatrix” if a woman).
          2. The will must be witnessed by two credible witnesses above the age
            of 14.
          3. The witnesses must sign in the presence of the testator or testatrix.
        3. Proving Up the Will
          1. Texas law requires the testimony of one witness in order to prove up the will in probate court.
          2. Texas law permits the testator/testatrix and witnesses to execute a self-proving affidavit (the signatures must be notarized) as part of the will execution ceremony. This affidavit is a sworn statement by the witnesses that serves as a substitute for the witnesses’ testimony in court after the testator dies.
      1. Additional Issues to Consider
        1. Are the beneficiary designations you have made on your life insurance policies, IRAs, and other retirement plans consistent with the way your will is being drafted? As discussed below under the question “What property is controlled by my will?” these non-probate assets will pass to the beneficiaries you have designated even if your will provides that you want to leave everything to a different person.
        2. Unless the will states otherwise, in Texas your executor will likely be required to obtain a bond that will protect the estate in case of any fraud or gross negligence by the executor. As long as you are comfortable with your executor choice(s), your will may state that you waive the bond requirement for your executor.
        3. Texas has a simplified probate process that will only be available to your estate if you provide in your will that your executor is to be an “independent executor,” and include additional related language that your attorney can provide.
        4. Whether you are married or single, you should always list several backup beneficiaries in your will in case your primary beneficiary does not survive you.
        5. If your children are minor children, or if they are over 18 but you would not want them to get all of their inheritance immediately, ask your attorney about a will with a testamentary trust which is discussed below under the question “How can I provide for my minor children?”
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