For most people, the foundation of an estate plan is their Last Will and Testament. Whether you plan to add additional components to your estate plan in the future or not, you should at least have a Will in place to protect you, your assets, and your loved ones in the event of your death. If you have never executed a Will before you may have a number of questions about the process of drafting and signing your Will. For example, you may wonder “ What is a self-proving Will? ” To understand what a self-proving Will is you need to have basic understanding of what happens to your Will after your death.
When you die your estate will likely need to go through the legal process known as probate. During the probate process your assets are identified, valued, and ultimately transferred to the intended beneficiary if you died testate (with a valid Will in place) or to your legal heirs if you died intestate (without a valid Will). Before the probate process can begin, your original Last Will and testament must be located. Once located, the Executor of your estate typically prepares the document needed to open probate and files those documents, along with your Will, with the appropriate court. The court is then charged with making a legal determination that the Will submitted for probate is, indeed, the Last Will and Testament of the decedent and that the Will was properly executed. In other words, the court must declare the Will to be valid before probate can move forward. Historically, the way to prove that a Will was valid was to summon the witnesses into court and have them testify to the document’s validity. As you can imagine, that method proved rater burdensome as the population grew and people began to travel farther and farther away from their birthplace. Therefore, the “self-proving Will” developed as an alternative to requiring the presence of witnesses before a Will could be probated.
In Texas, there are basically two types of self-proving Wills – a holographic self-proving Will and an attested self-proving Will. A holographic Will is one that is entirely in the testator’s own handwriting. To make a holographic Will self-proving the testator must sign and swear an affidavit in front of a notary that says the testator was, at the time of the execution of the Will, at least 18 years old, of sound mind, and had not revoked the Will. The affidavit may be signed when the Will is signed or anytime thereafter.
An attested Will is one that is not entirely in the testator’s handwriting, typically meaning a typewritten Will. To make an attested Will self-proving its execution must be witnessed by two witnesses and statutory language added at the end for the notary. The testator must sign in the presence of the witnesses and notary, the witnesses must sign in each other’s presence and in the presence of the testator and notary, and the notary must sign and affix his or her seal in the presence of the testator and the witnesses.
If you have additional questions or concerns about your Texas estate plan, contact the experienced Texas estate planning attorneys at The Mendel Law Firm, L.P. by calling 281-759-3213 to schedule your appointment today.
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