My father died 16 years ago without a will. My mother wants to make a will.

Full question:

My father died 16 years ago without a will. My mother wants to make a will. Can this be done without doing something about my father dieing without a will?

• Category: Wills and Estates
• Date: 04/07/2025
• State: Texas

Answer:

The ability to make a will is controlled by the law of the state either in which a person resides, or by the law of a state in which a person is present, when making a will. As a general rule, and this is true of Texas and of all other states, any person who is of legal age and who has testamentary capacity may make a will, so long as the will is executed with the required statutory formalities. Whether one's late husband made a will or not is irrelevant. Whether one's parent made a will is irrelevant. Each person of legal age who possesses testamentary capacity may make a will, make revoke that will, may then make another will, may make a codicil to that will, may revoke that will and codicil, and may make yet another will. Each will is an independent act that is unencumbered by any prior will of that person or of any other person. The validity of a will is judged solely by the legal requirements (as set forth in the state's statutes and as interpreted by the state's courts) -- namely legal age and testamentary capacity -- and by compliance with the statutory formalities for execution, namely, subscribed by the maker in the presence of the required witness, each of whom then signs the will as a witness to the making of the will. Many if not most lawyers who regularly assist persons in making wills also prepare an attestation affidavit that when submitted with the original will in probate makes the will a self-proving will.