Dear Mr. Premack: If I create a codicil to my Will, all of which is written by my hand, and have it witnessed by two people, will it hold up in court? If not, what must I do? – WB

A codicil is an amendment to an already existing Will. For a codicil to be valid, it must be executed with the same solemnities required for a valid Will. Consequently, there are two ways a testator can create a legally valid codicil:

First, a handwritten codicil is valid under Texas law if 1) it is entirely in the handwriting of the testator, 2) it contains the date on which it was written, and 3) it is signed by the testator. Witnesses are not required.

Second, a typed codicil is valid under Texas law if 1) it contains the date on which it was written, 2) it is signed by the testator, and 3) it is witnessed by two people who are fourteen or older.

You ask if your codicil (handwritten and witnessed) will hold up in court. From the basic perspective of whether it would be admitted to probate (ruled to be legally valid) the answer is "yes". From the more complex perspective of whether it will actually accomplish the goals you have in mind, I don’t know. I discourage handwritten codicils and handwritten Wills because they may not contain all of the legal efficiencies that an experienced attorney would include.

For example: a handwritten codicil that names a different person as your Executor may fail to allow independent probate, or it may forget to waive the executor’s bond. Your choice for Executor will be allowed to serve in that role but may have to spend a great deal more money and more time in court than would be necessary if the codicil included the proper legal efficiencies.

Another example: when you die and your handwritten codicil is taken before the court, the Judge is not allowed to accept it without evidence proving it was actually written by you and is not a fake or a fraud. If the codicil is witnessed, those witnesses must be located and must testify in court. If they cannot be found, the court can allow testimony from people familiar with you and your handwriting (who will swear that the handwriting is indeed yours).

Locating and preparing the witnesses to testify is an extra burden for your Executor made necessary only because your codicil lacks efficiency. Texas law allows you to attach a properly worded "self-proving affidavit" to your codicil which allows the court to accept your codicil as authentic without further testimony. The witnesses do not need to appear in court to testify when the codicil is self-proven. If the codicil is handwritten, the affidavit must be signed by the testator and must be notarized. If the codicil is typed, the affidavit must be signed by the testator and the witnesses, and must be notarized.

Many lawyers these days avoid writing codicils. Instead, it is often more efficient to reproduce your entire Will with the modifications you desire integrated into the new version. This helps avoid confusion, and keeps your heirs from knowing that you have changed your mind about what they are to receive. If you are trying to save money by making your own codicil, consider using an online virtual law office. Just be sure to avoid those "forms services" that use untrained, unlicensed staff to generate your codicil with software. Find an online virtual law office operated by an experienced, licensed Texas attorney.

Dear Mr. Premack: Does a criminal record prevent someone from being a guardian? – DH

Texas law does not ban a person from becoming a guardian simply because that person has a criminal record. But a criminal record can and will be taken into account by the court before appointing a guardian.

If the court determines that a person has "notoriously bad conduct" then that person is disqualified by law from becoming guardian. Likewise, anyone who lacks the experience or education to be an effective guardian, or who in the court’s opinion is "incapable of properly and prudently managing and controlling the ward or the ward's estate" is disqualified. In general, anyone "found unsuitable by the court" is disqualified.

Hence, a family member convicted of a violent crime or of fraud or theft is unlikely to be appointed guardian. On the other hand, a person convicted of something like making "unreasonable noise in a public place" (a misdemeanor under Penal Code 42.01) can still be appointed if the court finds the person otherwise suitable.