A validly created will is one without evidence of mental duress, incapacity or fraud. This means that in addition to being mentally competent to draft your will, you must not have been coerced or pressured into making it. If someone threatened physical violence or blackmailed you into creating certain provisions within your will, your will is invalid under the duress prohibition.
Texas law requires probate of your will within four years of your death. Unless you comply with the requirements of creating a self-proven will, your will requires that at least one of your two witnesses authenticate your will and testify that at the time you created your will, you were under no duress, there was no fraud, and you were mentally competent to create one. If you created a handwritten or holographic will, a probate court will require the testimony of both of your attesting witnesses to authenticate your will. A self-proven will is one that contains specific language using the statutory form affidavit. You must have a notary public witness and attest to the validity of your signature and the signature of your witnesses. A will does not comply with the statutory requirements for a self-proven will if your witnesses do not sign your will, and you have only a notary’s attestation. If you provide a self-proven will, your witnesses do not have to authenticate your will for it to be admitted into probate. Instead, your signature, the witnesses’ signatures and the notary’s attestation clause provides self-authentication.
A will that is not authenticated or self-proven will not be admitted into probate. In this case, your estate is subject to the state’s intestacy laws as if you never created a will.
Stephen A. Mendel, Estate Planning Attorney
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