Posts

Beware Fill in the Blanks Will | Chris Wilmoth | Probate Law | Farrow-Gillespie Heath Witter LLP

Beware Fill-in-the-Blank Wills!

In 2015, the Texas Legislature passed a law requiring the Supreme Court of Texas to make available to the public simple forms for preparing wills. In the six years since, however, the Supreme Court has not published these model wills online. If and when these free model wills are published, it will become easier and more affordable for Texans to prepare a will by simply filling in the blanks.

Of course, fill-in-the-blank form wills are much older than the internet and can be found in form books available at your local bookstore. When blanks in a draft or form will are completed in handwriting, the question sometimes arises whether the handwriting was inserted before or after the will was signed.

In 1837, in the absence of evidence as to when blanks were filled in, the Supreme Court of Missouri presumed that the blanks were filled in before the will was signed.[1] Other state courts have followed this presumption, including South Carolina (1921), Illinois (1929), Wisconsin (1939) and Montana (1960).[2] A legal treatise published in 1954 described this presumption as “well settled.” However, no reported Texas case has adopted or rejected this presumption.

There are many published cases from Texas courts addressing “interlineations” in wills – that is, handwritten (or even typewritten) insertions to the text of a will (as opposed to merely filling in blanks). When such a will is challenged, courts require testimony that the insertions were made before or at the time the will was signed because insertions made after signing are considered void. Even in uncontested cases, probate courts typically admit wills with interlineations “as originally written,” leaving questions about insertions to be resolved by agreement or subsequent litigation.

People making a will should not count on a Texas probate court accepting handwritten insertions, even if they are merely filling in the blanks. This could lead to ineffective provisions in the will or, worse, the complete failure of the document to be admitted to probate, resulting in an intestacy.

Attorneys experienced in the drafting and execution of wills take steps to avoid the issue entirely. With word processing programs, it is easy to make corrections and minimize handwritten insertions during signing ceremonies held at the attorney’s office.

If the will is being signed in someone’s home and blanks need to be filled or corrections need to be made, it is best to initial and date those insertions and refer to them in the self-proving affidavit. Even then, the witnesses might be called upon to testify in court that the handwriting was part of the will when it was signed.

If the Supreme Court someday makes form wills available to the public online, or if you use a form from a book, your will stands a better chance of being admitted to probate at less cost and inconvenience if it contains no handwriting except for the signatures of the testator and the witnesses. The experienced estate planning attorneys at FGHW are prepared to help you minimize these risks.


[1] Graham v. O’Fallon, 4 Mo. 601 (1837).

[2] Guerin v. Hunt, 110 S.E. 71 (S.C. 1921); Martin v. Martin, 165 N.E. 644 (Ill. 1929); In re Home’s Will, 284 N.W. 766 (Wisc. 1939); In re French’s Estate, 351 P.2d 548 (Mont. 1960).


Hon. Chris Wilmoth is a seasoned probate, guardianship, and trust litigator. He also conducts mediations and accepts appointments as a special judge. Mr. Wilmoth served as Judge of Dallas County Probate Court No. 2 from 2011 through 2014. He has been named one of the best lawyers in Dallas by D Magazine each year since 2018.

Intestate Real Estate Property | Probate Law | Farrow-Gillespie Heath Witter LLP

What Happens to Your Real Estate Property If You Die Without a Will?

If you reside in the state of Texas and die leaving a valid will that disposes of real estate property, then the real estate ownership will pass to the person who is to receive the land according to the will. However, the will must be probated in a court for this transfer to be effective.

If you die without a valid will, or if your will is never probated, then your real property is distributed under the intestacy laws of the state of Texas.

The applicable rules of “descent and distribution under Texas law vary depending on whether you are single or married and if had children or other heirs at the time of death. Depending on your particular circumstances, your heirs could include a surviving spouse, your parents, siblings, aunts, uncles, nieces, nephews, or even distant relatives you may not know. Only in the worst-case scenario, when no heirs exist, will your real estate property go to the state of Texas.

If You’re Single

If you are single (whether never married, divorced, or widowed) and you have children at the time of your death, then your real estate property will go to your children to share in equal parts. If any child has died before you, and that child has any children, then that child’s share will go to his or her descendants. If not, the deceased child’s share goes to his or her siblings.

If you are a single person with no children who is survived by both parents, then your father will receive half of your real estate property and your mother will receive the other half.

If you are single and have one surviving parent, but no siblings or descendants of deceased siblings, then all of your real estate property goes to your surviving parent.

If you are a single person survived by only one parent and by siblings (or a sibling’s descendants), then your siblings and the descendants of deceased siblings are entitled to one-half of the real property, and your surviving parent is entitled to the other half. If you are single and both your parents died before you, your real property goes to your siblings and/or their descendants. In either event, if you are at least survived by one sibling, the siblings’ portion is divided by the number of siblings; descendants of a predeceased sibling divide that sibling’s share equally. If all your siblings predeceased you, the siblings’ share is divided equally among all your nieces and nephews.

The foregoing rules apply when you and your siblings share the same parents. If you have half-siblings, your full siblings get a double share as compared with your half siblings.

If You’re Married

Community Property

If your real estate property is community property, in most cases the property goes entirely to your surviving spouse. But if you have children who are not also children of your surviving spouse, then the children will take your community real property share and the surviving spouse retains his or her share.

Separate Real Property

If it’s separate real property, it may be split between your surviving spouse, siblings, parents, and children. For example, if you have separate real property and you are married with children at the time of your death, your separate real property will all go to your children and your surviving spouse will get one-third interest in a life estate. All of your separate real property will be owned outright by your children when your surviving spouse is no longer living on the property. If you have no children, your surviving spouse receives one-half of your separate real property and the other half passes as if you were single (see above).

Unmarried Couples

If you are an unmarried couple living together, the surviving individual will not have any ownership rights to your real estate property. When you die without a will, your interest in the real property will be divided among your heirs. Texas intestacy laws only recognize the right of relatives to inherit property. Therefore, unmarried couples do not have any real property rights in their partner’s assets if they die, unless a will or other legal document clearly states otherwise. This rule applies to persons in domestic partnerships as well.

Avoid Dying Without a Will. Consult an Attorney.

Preparing estate planning documents can be complicated and it would be wise to talk to an estate planning attorney licensed to practice law in Texas. An experienced estate planning attorney can assist you in preparing a valid will and other estate documents to meet your specific needs.