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Why executing a will might not be as hard as you think - II

In our previous post, we discussed the surprising reality that 64 percent of people in the U.S. are without a will and some of the reasons behind this phenomenon, including concerns about time and money, fear of addressing mortality and worries about the level of difficulty involved with the process.

We then started discussing how the concerns over this last point are somewhat overblown given the minimum number of requirements for the testator -- the person leaving the will -- and the fact that Texas law recognizes two types of wills. We'll continue this discussion in today's post, focusing on the differences between handwritten wills and typewritten wills.

Typewritten wills    

Given that this is the only way in which licensed attorneys will draft wills, these are considerably more common.

While this preference for "formal wills" can certainly be attributed to the fact that they are easier to read and less apt to contain mistakes, it can also be attributed to the fact that they are more likely to be viewed by courts as demonstrating the decedent's intent.

Furthermore, the execution requirements are considerably less onerous:

  • The will must be signed by either the testator, or someone else in their presence and at their direction.
  • The will must be attested to by two credible witnesses over 14 years-old. (Beneficiaries should avoid serving in this capacity.)
  • The will must be signed by the two witnesses in the testator's presence.

Handwritten wills

The execution requirements for a handwritten -- or holographic -- will are considerably different from those required for a typewritten will and include the following:

  • The will must be written entirely in the handwriting of the testator, such that no typewritten words can be incorporated.
  • The will must be signed by the testator.
  • The will can be written on anything and does not require witnesses.
  • The will must demonstrate an intent to dispose of property upon death (i.e., "This is my last will and testament").

In addition to these different and, in certain respects, more onerous requirements, lay people who choose to draft a holographic always run the risk of inadvertently creating legal obstacles by either failing to dispose of all of their property or disposing of too much property.  

In our final post on this topic, we'll explore how the existence of a will -- typewritten or handwritten -- matters as far as probate is concerned. 

Consider speaking with a skilled legal professional if you would like to discuss executing a formal will or have questions about more complex estate planning matters.

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