How is a Will Proven to be Valid During Probate?

You have a valid Will, what steps must be taken to make sure that it can properly be admitted into probate?  

For a valid Will to be admitted into probate, it must be proven to the court to be the Last Will and Testament of the testator.   Before I explain that, here are the two types of valid Wills in Texas. 

  1. A holographic Will is a testamentary instrument written solely in the testator’s own handwriting
  2. An attested Will is a testamentary instrument that can be typed or hand written, but is not entirely in the testator’s handwriting.  To be valid, an attested Will must be witnessed by two disinterested witnesses over the age of 14.

Back to proving that the document you hold is the Last Will and Testament of the testator. There are two ways to prove this to the court:

  1. The harder way: A holographic Will can be proven by the sworn testimony or an affidavit of two people who have knowledge of the deceased’s handwriting.  An attested Will may be proven by the testimony of at least two of the witnesses who signed the Will, or by an affidavit of those witnesses attesting to its truth as the Last Will and Testament of the testator.  This costs money and time, which is an unnecessary burden; and
  2. The easier way: The Will (whether attested or holographic) can be made a self-proved Will.  A self-proved Will is a Will to which a self-proving affidavit subscribed and sworn to by the testator and witnesses is attached or annexed, or that is simultaneously executed, attested, and made self-proved before an officer authorized to administer oaths, such as a notary.  If either of these two steps has been followed, a self-proved Will may be admitted to probate without the testimony of any subscribing witnesses.  This saves time and money and knocks off one of the burdens of an executor of your estate following your passing.

A qualified family law, probate and estate planning attorney can explain options for your estate planning, and make sure your Will is ready for the probate process. 

Author Jim Cramp is a retired active duty colonel and the founder and principal attorney at the Cramp Law Firm, PLLC.  The firm provides a spectrum of family law-related services to clients in the greater San Antonio region, across the United States and throughout the world.  The firms also provides Wills and Estates and Probate services.