So, you have your Last Will and the rest of your estate planning documents completed. Nice job! But wait, life doesn't stand still, right? On average, people do not review their estate plans for 18 years.  Wow!  Think of all the changes that have taken place in your life in the last 18 years. Yes, things change; and sometimes, those changes mean you need to update your Will and the rest of your estate plan, especially where life milestones are reached, your property changes (both real property and personal property), your health changes, your relationships change, you move to a different state and/or the laws change. There appears to be a mistaken assumption that once you have a valid Will, especially if done by a lawyer, you can change it via a “Do-It-Yourself” (DIY) revision. Unfortunately, this can lead to significant complications and confusion, including partially or completely invalidating your original Will.

Case Scenario

A potential, grief-stricken client walks into a law firm for a probate consultation because her mom passed away. She is thinking that probate should be simple and quick because her mom left a Will that was drafted by an estate planning attorney, named her executor and “clearly” stated her wishes as to the beneficiaries of her estate and the specific disposition of her assets. However, after reviewing the Will, she is told that things will not go through probate as smoothly and as quickly as she thinks because, unfortunately, when Mom changed her mind about certain bequests in her originally executed Will, rather than going to an attorney to make sure those changes met all the Texas Estate Code’s requirements and formalities, Mom decided that she could make her own revisions to the Will. So, she grabbed her original Will, scratched out a few things, made some handwritten adjustments to the names and percentages of her “stuff” each beneficiary would receive, then put her initials next to the changes to reflect these were, in fact, her desires. Then, she put the original Will back in its safe place and thought that all was good now. Is the Will valid under Texas law? The originally executed and valid Will might be, but all of Mom’s scratch-outs and handwritten interlineations will be ignored by the Probate Court.

Why? Under the Texas Estates Code, a Will is valid if it meets the following requirements:

• It is in writing (either typed or handwritten; but if handwritten, it must meet the statute’s requirements and it cannot be digital);
• It is actually signed (not a digital signature) by the person making the Will (the “Testator”);
• The Testator was at least 18 when it was signed (unless certain exemptions are met);
• The Testator was of sound mind, i.e. was mentally capable of making decisions about their assets and understood the consequences of those decisions; and
• The Testator had “testamentary intent”, i.e. the Testator understood the fact that they were executing a Will, understood the effect of making that Will and understood it would dispose of their assets at their death.

Additionally, if the Will has anything typewritten in it, it must:

• Be attested to and signed by 2 witnesses that are over the age of 14 and are disinterested, i.e. they cannot be receiving anything under the Will;
• State that the witnesses saw the Testator sign the Will in person; and
• State that the witnesses signed the Will in the presence of the Testator.

These formalities are mandated by law not only as to a Will, but also for an amendment to a Will, called a “Codicil”.  And, just in case you are thinking the following would work to get around these formalities, the answer is NO:

• What if the Will was typed, but it has handwritten interlineations or other changes, could the handwritten things meet the requirements for a holographic Will? NO
• What if the changes were made the same day and before 2 disinterested witnesses, could it be valid? NO – without further evidence, how can the Court determine if this is actually true?
• What if the Testator writes on the Will that this is their intent, is it valid? NO – without the formalities being met, it will likely be held to be “brainstorming” by the Testator with an intent to properly change their Will in the future.

The bottom line is that a DIY Will or Codicil is ripe for potential disaster and if they do not meet the requirements and formalities under the law, they will fail and be disregarded by the Probate Court. And, unfortunately, the Probate Court, by law, will have to ignore the handwritten interlineations and uphold only the terms of the original Will, or if these “changes” affected even the validity of the original Will, the entire Will might be held to be invalid and then the Probate Court, by law, will have to distribute the Testator’s assets pursuant to the laws of descent and distribution mandated by the State of Texas. This means your “heirs” (the people in your bloodline) and not your “beneficiaries” (the people you named in your Will) will inherit your assets.

So, do yourself a favor—when it's time to update your Will, ensure it is done correctly and contact an estate planning lawyer so that your wishes for your loved ones and your assets are truly accomplished when you are gone.

Contact Us

Contact The Law Firm of Blanche D. Smith to ensure you are making a fully-informed decision. Call us today at (936) 301-0111 or fill out the form below.