Self-Proved Will

The Texas Estates Code provides a Will may be made "self-proved." A self-proved Will may be admitted to probate without the testimony of any witnesses. The procedure for self proving a Will differs based on whether the Will was wholly in the handwriting of the decedent (holographic), or was an attested or witnessed Will.

Holographic Will

The Texas Estates Code provides where a Will is written wholly in the handwriting of the testator, the attestation by subscribing witnesses is not required. If the Will is not self-proved, two persons familiar with the handwriting of the testator must testify that the Will and signature are wholly in the handwriting of the decedent.

A holographic Will may be made self-proved at any time during the testator's lifetime by the attachement or annexation thereto of an affidavit by the testator to the effect that the instrument is his last Will; that he was at least eighteen years of age when he executed it (or, if under such age, was or had been lawfully married, or was then a member of the armed forces of the United States or of an auxiliary thereof or of the Maritime Service); that he was of sound mind; and that he has not revoked such instrument.

Attested Will

The procedure for self-proving a Will that is not entirely in the handwriting of the testator, an "attested Will", is much more complex. The Texas Estates Code provides that an attested Will may, at the time of its execution or at any subsequent date during the lifetime of the testator and the witnesses, be made "self-proved." A self-proved attested Will is one where the testator and the attesting witnesses swear under oath, to an officer authorized to administer oaths, that the requirements for executing a Will were met. In effect, the testator and the witnesses testify in advance.

Prior to September 1, 2011, executing a self-proved Will was a two step process. The testator and the witnesses would first sign the Will making it valid. Then the testator and witnesses would then complete and execute an affidavit, thus making the Will self-proved. The affidavit, with official seal affixed, was substantially in the following form:

THE STATE OF TEXAS

COUNTY OF [COUNTY]

Before me, the undersigned authority, on this day personally appeared [Testator], [Witness#1] and [Witness#2], known to me to be the testator and the witnesses, respectively, whose names are subscribed to the annexed or foregoing instrument in their respective capacities, and, all of said persons being by me duly sworn, the said [Testator], testator, declared to me and to the said witnesses in my presence that said instrument is his last will and testament, and that he had willingly made and executed it as his free act and deed; and the said witnesses, each on his oath stated to me, in the presence and hearing of the said testator, that the said testator had declared to them that said instrument is his last will and testament, and that he executed same as such and wanted each of them to sign it as a witness; and upon their oaths each witness stated further that they did sign the same as witnesses in the presence of the said testator and at his request; that he was at that time eighteen years of age or over (or being under such age, was or had been lawfully married, or was then a member of the armed forces of the United States or of an auxiliary thereof or of the Maritime Service) and was of sound mind; and that each of said witnesses was then at least fourteen years of age.

                                       
(Signed) Testator

                                       
(Signed) Witness#1

                                       
(Signed) Witness#2

Subscribed and sworn to before me by the said [Testator], testator, and by the said [Witness#1] and [Witness#2], witnesses, this ______ day of ________________, _______ A.D.

 

[SEAL]

                                       
(Signed) Official Capacity of Officer

As of September 1, 2011, Texas law changed to also allow a Will to be simultaneously executed, attested (witnessed), and made self-proved with only one set of signatures. The testator and the witnesses complete and execute an affidavit, thus making the Will both valid and self-proved. The affidavit, with official seal affixed, was substantially in the following form:

I, [Testator], as testator, after being duly sworn, declare to the undersigned witnesses and to the undersigned authority that this instrument is my will, that I have willingly made and executed it in the presence of the undersigned witnesses, all of whom were present at the same time, as my free act and deed, and that I have requested each of the undersigned witnesses to sign this will in my presence and in the presence of each other.  I now sign this will in the presence of the attesting witnesses and the undersigned authority on this _____ day of ____________________, 20____.

                                       
(Signed) Testator

The undersigned, [Witness#1] and [Witness#2], each being above fourteen years of age, after being duly sworn, declare to the testator and to the undersigned authority that the testator declared to us that this instrument is the testator's will and that the testator requested us to act as witnesses to the testator's will and signature.  The testator then signed this will in our presence, all of us being present at the same time.  The testator is eighteen years of age or over (or being under such age, is or has been lawfully married, or is a member of the armed forces of the United States or of an auxiliary thereof or of the Maritime Service), and we believe the testator to be of sound mind.  We now sign our names as attesting witnesses in the presence of the testator, each other, and the undersigned authority on this _____ day of ____________________, 20____.

                                       
(Signed) Witness#1

                                       
(Signed) Witness#2

Subscribed and sworn to before me by the said [Testator], testator, and by the said [Witness#1] and [Witness#2], witnesses, this _____ day of ____________________, 20____.

 

[SEAL]

                                       
(Signed) Official Capacity of Officer

 

Please note that the two-step process of self-proving a Will that was acceptable prior to September 1, 2011 remains an acceptable way to self-prove a Will.