The Houston Family Law Blog

Can Family Members Be Your Will Witnesses?

When drafting a will, it's important to know if family members can be witnesses to your will.

In most states, witnesses to a will aren't allowed to also be named as beneficiaries. Since most wills leave gifts to family members or heirs, having them witness your will could leave it open to challenges or force your family members to lose what you've left them.

So what are the requirements to form a will in Texas? And what happens if your family member is a witness?

Texas Will Requirements

When forming a valid will, there a several requirements that must be satisfied. In order to draft valid will in Texas, the person drafting the will, known as the testator, must:

  • Be at least 18 years old,
  • Be of sound mind, and
  • Have the right and power to make a will.
If the testator isn't 18, then his or her will may be invalid unless he or she has been lawfully married or served in the military.

Additionally, there are several formalities that need to be taken care of before for a will is valid. One of them requires the will be in writing and signed by the testator -- or by another person as directed by the testator. Another Texas will formality asks that the signing of the will be done in the presence of two credible witnesses over the age of 14.

What If a Family Member Is a Witness?

Although family members who are over the age of 14 are legally eligible to be a witness to your will, it may prevent them from receiving a gift if they are named beneficiaries. Witnesses who are beneficiaries to a will are called interested witnesses.

In Texas, a gift in a will to an interested witness will be presumed void because those who stand to benefit from a will may have a reason to lie about its execution. However, there are exceptions which allow an interested witness family member to keep his or her gift in the will. Texas probate law allows an interested witness to receive the portion of his her gift that he or she would have received if the testator died without a will. An interested family witness may also keep his or her gifts if a third party who has no stake in the will corroborates that witness' testimony.

So if a family member is a beneficiary as well as a witness to your will, he or she may still be able to receive his or her gift under Texas laws. Although to play it safe, you may want to choose two uninterested third parties to serve as witnesses.

Probate laws can be confusing, so consult with an estate planning lawyer in Houston for more information on drafting a will.

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