A will is a written document that directs how one's property is disposed of after that person's death, and that is signed by the person creating the will (this person is called the "Testator"). Therefor, a Will (i) has to be in writing, (ii) must be signed by the Testator, and (iii) contain "testamentary intent", meaning that it is apparent the document was written to direct how Testator's assets are to be handled after death. But to be recognized in Texas as a valid Will, the document needs to follow specific formalities, depending if the Will is a "Holographic Will" or an "Attested Will".
- Holographic Will. This is a Will written entirely in the handwriting of the Testator. As long as the hand-written portion of the document contains all of the requisite information (i.e., testamentary intent and signature), then it is a valid holographic Will. Therefore, if the holographic Will contains additional parts that are not in Testator's handwriting (either typed or written by another person), it would still be a valid holographic Will if the offending portions can be disregarded and the remaining portion of Testator's handwriting contains the necessary language to create a valid Will.
- Attested Will. For a Will that is not holographic, that written document needs to be "attested" by a least two (2) witnesses. If not attested by two witnesses, the document is not a valid Will. Attestation just means the two witnesses signed the Will in Testator's presence, and that they saw the Testator sign the Will. The attesting witnesses need to be at least 14 years old and generally cannot inherit under the Will.
- Self-Proved Will. If the Will is "Self-Proved", the Will contains what is called a "self-proving affidavit" or a "self-proving clause". Essentially, these are sworn statements before an authorized officer (generally a notary), containing language regarding (i) Testator's declaration that Testator is publishing the document willingly as a Will, and (ii) the attesting witnesses' testimony pertaining to Testator's age, mental capacity, and Testator's testimony regarding the signing of the Will. Testator, the attestation witnesses and the notary all need to sign the self-proving affidavit. Texas law is specific regarding the language that has to be included in a self-proving clause. If the required language is not included, the Will is not self-proving, although it may still be a valid Attested Will. A holographic will can also be self-proved, but the self-proving clause of a holographic will requires the additional statement that the will has not been revoked.
- Legal significance of a Self-Proved Will. If not self-proved, to submit a document as a Will in a probate proceeding, the applicant needs to produce one of the attesting witnesses to testify regarding Testator's execution of the Will. This may be difficult, especially if a long period of time has passed between the Will's execution and the probate. The witness may be difficult to find, or may not remember, or may have died. If self-proved, the Will can be admitted to probate without the testimony of an attesting witness. Not requiring testimony of an attesting witness to prove-up a Will saves time and effort, and is the preferred method of creating a Will. If the Will is holographic, without a self-proving affidavit, the applicant needs to submit evidence the document was in decedent's handwriting, or offer other evidence to show this document was the Will of decedent. A self-proving affidavit allows the Will to be admitted to probate without having to provide this additional evidence.