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The Validity of Handwritten Wills in Texas: Understanding Holographic Wills and Affidavit of Heirship

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Will the courts accept a handwritten will that is signed and witnessed, but not notarized or recorded with the county clerk?

I am the executor of my Mom's will and have POA for her.  She is currently incapacitated in a nursing home.  Her husband, my stepdad, passed away 4 1/2 years ago.  He and my mom left a handwritten will filled out by both of them and signed and witnessed by their friends in 1996 and re-read and signed again in 2000.  I desire to sell my Mom's house as she will not be able to return to it.  The title company I am working with will not accept their will because it was not notarized and recorded with the county clerk.  Instead, they are asking me to fill out an Affidavit of Heirship. 

I don't know much about his side of the family and more importantly, his two daughters from two different wives had a very minimal relationship with their father.  I have always had a close relationship with both, especially with my Mom.  I moved from out of state to be with Mom last year because I was worried about her health.  Three months later she had a stroke and now it is only myself that is managing her health, finances and cleaning out her house in order to sell.  

Is there a chance my stepdad and Mom's written wishes of utilizing a Right of Survivorship Arrangement/Community Property Pack can be legally acknowledged even though they did not notarize the witnesses signatures or record it with the county?  Or, is there any other way to avoid utilizing the Affidavit of Heirship that the title company is asking for?  My Mom's wills (there are two) state if she survives her husband I am entitled to do what I want with her property.   

Regards,

Sherry Templeton 

 

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Legal Solution

The response provided below is specific to probate law attorneys in the jurisdiction of New Braunfels, Texas. If the response is inadequate, please submit a detailed inquiry.

The Validity of Handwritten Wills in Texas: Understanding Holographic Wills and Affidavit of Heirship

Overview of Handwritten Wills and Their Implications

In Texas, handwritten wills, commonly known as "holographic wills", can indeed be valid and enforceable. However, to be considered valid, a holographic will must be entirely in the testator's handwriting and signed by them. While Texas does not necessarily require these wills to be notarized or witnessed, the absence of these formalities can lead to difficulties in proving their validity, especially during probate proceedings. In your situation, your mother and stepfather's handwritten will was signed and witnessed, which adds some weight to its authenticity. However, the title company's reluctance may stem from their desire to avoid potential legal disputes, especially given the lack of notarization.

Relevant Statutes and Sources

  • Texas Estates Code § 251.052: Holographic Will Requirements.
  • Texas Estates Code § 203.001: Necessity of Probate.
  • Texas Probate Website: An authoritative source for probate matters in Texas.

Potential Solutions to Your Legal Issue

  1. Probate the Handwritten Will: Consider initiating probate proceedings for the handwritten will in a Texas probate court. If the court determines the will is valid, it will simplify the property transfer process.
  2. Affidavit of Heirship: If the title company is requesting an Affidavit of Heirship, this might be the most efficient route. While it requires identifying all potential heirs, it can help avoid a more extended probate process. However, using this approach can expose you to potential claims from omitted heirs in the future.
  3. Consult a Probate Lawyer: To navigate the complexities, it might be best to find the right lawyer specializing in probate law. They can guide you through the process, ensuring all steps are appropriately managed.

Average Costs for Probate Services in New Braunfels, Texas

Service Average Cost
Initial Probate Consultation $250 - $500
Probate Process (Uncontested) $2,000 - $4,000
Probate Process (Contested) $5,000 - $15,000
Drafting Affidavit of Heirship $500 - $1,000
Resolving Heirship Disputes $3,000 - $7,000

Note on Pricing: These are average costs, and they can vary based on the complexity of your case and the experience of the attorney. It's essential to get a clear quote from your attorney before proceeding.

Seeking Further Clarification and Next Steps

While we've discussed the general legal landscape around your issue, individual circumstances can significantly impact the best course of action. To best understand your unique situation, consider a consultation with a legal expert. Remember, it's essential to ensure your actions align with your mother's wishes and Texas law.

What is the total value of your mother's estate?

Understanding the estate's value can determine if it qualifies for simplified probate proceedings.

Have you communicated with your stepfather's daughters regarding the estate?

Open communication can preempt potential legal challenges.

Are there other assets besides the house that need to be considered?

Different assets can have various legal requirements and may impact probate proceedings.


Frequently Asked Questions about Probate in Texas

What is a holographic will?

A holographic will is a will that is handwritten and signed by the testator without the usual formalities like witnessing.

Can a holographic will be contested in Texas?

Yes, like any will, a holographic will can be contested. However, proving its authenticity can be more challenging due to the lack of formalities.

What is an Affidavit of Heirship, and when is it used?

An Affidavit of Heirship is a sworn statement that identifies the decedent's heirs. It's often used to transfer property without formal probate proceedings.

What happens if there is no valid will in Texas?

If there's no valid will, the decedent's estate is distributed according to Texas's intestacy laws, which dictate how assets are divided among heirs.

How long does the probate process typically take in Texas?

The duration can vary, but an uncontested probate process can take a few months. However, contested cases or complex estates can extend the timeline significantly.

Disclaimer

This content is for informational purposes only and does not establish an attorney-client relationship. It's always recommended to consult with a local attorney about your specific situation.

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