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Do I have to probate my mother’s will?
Probating a will accomplishes three basic ends. It transfers legal title to estate assets, such as real estate; it distributes property according to the wishes of the decedent; and it provides a vehicle for creditors to be paid. Where there are no debts, and if you are able to transfer legal title and distribute property without probating the will, there is perhaps no legal necessity that the will be probated. However,
all wills, whether probated or not, must still be filed with the court under Section 252.201 of the Texas Estates Code. Simply take the original will, and a copy of the death certificate to the county clerk and tell the clerk that you are filing the will under section 252.201. The clerk will take the will and provide you with a receipt. If the need for a probate soon becomes apparent, you now know where to find that will!
If you know of someone who is refusing to file a will under section 252.201, you may have them served by a constable and thereby called in front of a judge to explain why they have not filed the will. If they continue to refuse to file the will, the judge may order them to pay you all the costs of the suit, including attorney’s fees, and order the person incarcerated until the will has been filed.
A will which has been filed under Section 252.201 is a public record, and anyone may obtain a copy from the county clerk.
Moreover, there may be alternatives to formal probate available depending upon whether there are outstanding debts owed, and the amount of property involved. For example, there are Family Settlement Agreements which can serve in lieu of probate to address the distribution of assets outside of a formal probate proceeding (but they require universal agreement).
While there are some instances when probate may be unnecessary, please allow an attorney to assess the situation rather than just sitting on an unprobated will. Probating the estate of a loved one often gets harder, not easier, when it is delayed.
If you delay probating a will for too long, you may lose the ability to do so. If you delay and later find that that there’s a need to probate the will, then your delay will make things exponentially more costly. Moreover, if a will is not filed promptly, necessary witnesses may become harder to locate.
If you have any questions regarding this, or any other other legal topic, please contact our office at 936.435.1908 or 281-723-2791.
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Family Settlement Agreement under Texas Law
A Family Settlement Agreement (FSA) is the term used for an agreement reached by all of the heirs as to how an estate should be distributed.
Oftentimes, an FSA is used to overcome the effects of a poorly drafted will. In other cases, it is somewhat like a magic wand for resolving probate disputes. There are few ills a properly drafted FSA cannot cure.
For instance, suppose a man dies with a second wife, but with children from his first wife. His will leaves everything to his children. The second wife claims a one-year family allowance, and the right to live in the man’s spacious and valuable home until she dies. She has that right, under Texas law. However,she is not really happy, because she knows she cannot afford to continue to live in the home, and would rather move near her own children, but if she did, she would have no place of her own to live. The children are not happy because the home is the most valuable asset of the estate, and they want to sell it now. Enter the family settlement agreement. The children and the wife can sit down together and agree that, in lieu of the family allowance and life estate, the wife can receive an annuity from the estate which would be sufficient to allow her to maintain a modest home near her own children. The children are now free to sell the home, use a portion of the proceeds to purchase the annuity, and distribute the entire estate.
A family settlement agreement is solid gold in probate court. The Court does not even have authority to approve or disapprove it. All the parties sign it, it is filed with the Court, and it acts both as a binding and enforceable contract. If properly drafted, it’s excellent protection against future liability and claims brought by heirs who spent their inheritance much faster than they ever thought they would (and now that they think about it, they really should have gotten more).
I have used family settlement agreements to quickly wrap-up cases that gave every indication of becoming nasty, protracted battles that would have made no one but me and the other lawyer happy. Actually, that is a myth. Most attorneys, myself included, hate cases where we can see our client is going to be unhappy at the other end, no matter how much money we might earn off their unhappiness. That is why I am such a fan of family settlement agreements. There is a much higher possibility that my client, and everyone else involved, will feel that justice was done.
Of course, all legal tactics, no matter how good, do have a downside. What are the downsides to a family settlement agreement?
- First, they require the agreement of ALL the heirs.
If you have one heir who is, for example, strung out on drugs, but living in his great aunt’s house, and not willing to do anything which would enable a sale of the home, the other 19 heirs cannot come together without him and sign a family settlement agreement. Instead, you will most likely end up with a dependent administration, where the judge may or may not allow you to take estate funds to make badly needed repairs before offering the house for sale, at a price which must first be approved by the judge, and in the meanwhile, you will need a bond, and will need a formal appraisal, and will need to file accountings and . . you get the idea. All for want of the signature of one miscreant with a 1/32 share of the estate.
- A second downside, is that if you give up something that you are clearly entitled to in a family settlement agreement, it may be seen as a gift for tax purposes.
A widow with a community estate worth 4 million cannot, for example, enter into a family settlement agreement with her children in which she changes her husband’s will to leave his half of the property directly to their children, thereby saving her heirs over $700,000 in taxes. Well, she can give her children one half of the property. And the court will allow it And it will be binding on her and the children. But it will not be binding on the IRS, and the taxes will still be owed. HOWEVER, if the same widow has a step child who was disinherited, and the will was made recently under circumstances which could arguably constitute undue influence then a reasonable agreement to surrender part of the inheritance to the step child most likely would be binding on the IRS, but that is going beyond the scope of this blog.
Suffice it to say, if you are probating or administering a taxable estate where the decedent did not invest in any tax planning, you will want to explore all your options.
All of this is not to say you should enter into a family settlement agreement in which your interests are not fairly represented. However, if you have an attorney, and a good idea of how the issue would come out, and what the costs might be without an agreement, they can not only save you a lot of money and time, but sometimes a family settlement agreement may also help you maintain a good, or at least a bearable, relationship with the other potential heirs. Or sometimes not.
In any case, you should have your own attorney review a proposed family settlement agreement before you sign. You may have rights you are not aware of.
If you would like to see an attorney to discuss a family settlment agreement, please contact my office:
Please call my Woodland office and set an appointment.
Visiting or reviewing this website does not create an attorney-client relationship.
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Proceeding to Determine Heirship
If you die without a will, then it’s the State of Texas that determines who will be your heirs. This state-imposed arrangement is one of the many problems suffered by those left behind. For example: Suppose John Doe dies without a will. His wife, Jane Doe, then tries to access a bank account that is in John’s name. Since there is no payable on death beneficiary listed on the account, the bank won’t allow her access. Why? Just ask yourself: How does the bank know John and Jane were legally married? Ah, but Jane shows the bank manager a marriage license. Still, the bank manager says that a marriage license doesn’t prove they were never divorced! In sum, pre-planning is the best way to avoid this and other similar difficulties; and a will is an excellent means of planning for an inevitable future event.
Similarly, how does the bank know whether John had children born outside of his marriage to Jane? Under Texas law, such children may be entitled to a share of the estate. Often, to protect itself, a bank may require a court order which definitively lists the heirs. Oftentimes what the bank wants is: a “Judgment Declaring Heirship.”
To obtain a Judgment Declaring Heirship, our Applicant, Jane, must file a lawsuit called a “Proceeding to Determine Heirship.” In this proceeding, she will list basic information about her deceased husband, John, including the date of his birth and death, the date of their marriage, and any previous marriages, the names, birthdates, and addresses of his children, and, whether he was ever divorced. Each of John’s other heirs must either be served in person, or they must file a waiver stating that they have seen the application, and are waiving their right to be served. After the proceeding is filed, most courts will require that Jane request the appointment of an attorney ad-litem. The Ad-Litem’s job is to represent any “missing” heirs that Laura did not tell the Court about. Laura will also have to post a notice in the local paper that she has filed a proceeding to determine heirship. Then Jane will have to bring two witnesses, who are not related to her or John, and yet knew John well enough to be able to give testimony about any marriages, divorces, and children born inside or out of the marriage. At a scheduled court hearing, she will give evidence, as will the two witnesses, and the ad litem. Thereupon the Judge will enter a Judgment Declaring Heirship. This Judgment should recite all John’s heirs and the percentages which they should each receive of his separate and community property. In many cases, it will also list the property, and classify it as community or separate property.
If you have questions regarding this, or any other legal matter, please contact
Andrew J. Bolton, Attorney at Law, to schedule an appointment at either or Huntsville, TheWoodlands office at 936-435-1908. Sugar Land and Stafford residents may call 281-723-2791. Visiting or reviewing this blog does not create an attorney-client relationship. Information here should not be considered legal advice.
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I am considering a will contest
There are a number of avenues open to challenge a will. One of the most common challenge is to assert that a will was made under duress or undue influence. Undue influence means that there is an influence (usually another person) who overpowers or subverts that of the testator (the person making the will) and causes the testator to make a will which he would otherwise not have made. Duress seems to be somewhat self-explanatory. If a person signs any document under the fear that if she or she does not do so then physical harm may come to them–such a feeling can rightly be termed “duress.”
An example undue influence in the will making process would be a situation wherein Granny is checked into a nursing home by her children, who, visit frequently, but cannot provide the round the clock care which Granny requires. Four months later, Granny dies, and to everyone’s astonishment, her nurse, Florence, produces a will which leaves everything to her, a “relative” stranger.
Such a will may be relatively easy to overturn because of the presence of a close family, the short length of time Granny knew Florence, the large amounts of time Florence spent alone with Granny, and Granny’s physical dependence on Florence. But with the removal of any of these elements, a challenge becomes more difficult.
Moreover, some wills have a “no contest” clause which functions to disinherit or greatly diminish the award of any beneficary who contests a will. However, in the event of a successful challenge, the no contest provision is often voided along with the will. But making such a decision requires knowing all of the facts.
If you are considering a will contest, please contact Andrew J. Bolton, Attorney at Law, at 936-435-1908 or 281-723-2791 to schedule an appointment.
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Things to condsider when writing a Texas will
This section is not intended to help you write your own will. Some items which may be discussed here may constitute things you might want to think about before going to see an attorney. Other items may be quirky considerations that struck me as funny. Or, they may just be unusual things that have come up in the past. You are advised to obtain competent legal counsel prior to drafting any will or testament.
When you do see an attorney, your attorney should, of course, listen to what you want. If your attorney does not know that you want to provide for your pet upon your death, or guarantee that your sister is not appointed the guardian over your children, then how can you make sure such things do (or don’t) happen? Listening therefore, is key. For your part, you too should be prepared to listen to your attorney. Indeed, while I have had clients who seem to show me too much deference, to the point of asking me how they should split up their property, or not wanting to actually read any of their documents, I am sometimes surprised to have clients show resistance to the oddest things which are necessary to the will-making process. So, before coming in, think about possible answers to the following questions (some of which are admittedly simplistic):
Q: Where should I safeguard my will?
A: There are several good places to keep your will, and even more bad ones. A home safe is one of the worst, unless there is plenty of access to it by others. Texas counties allow “safekeeping filings” and that’s a good place to keep a will, so long as loved ones know about it. Safe deposit boxes are also a good place to put a will. The law allows banks to open the box to allow an executor to obtain a will kept inside.
Q: At What Age should I let someone inherit in my will?
A: This answer depends upon the purposes which you want to accomplish in the will. Do you wish to keep the money safe from a spendthrift? Or provide for a child’s college education? Or perhaps make provision for a subsequent, unforeseen illness and recovery? Most clients say that 18 is too young; others feel comfortable with allowing a child to inherit free from restriction at the age of twenty-five. It’s your will and your family–you make the choice.
Q: Do I want my life insurance policy to “pour over” into my will?
A: It depends on what you want to do with it, of course. If it all goes to your spouse, then having him or her named as a beneficiary on the policy itself will speed up the “time it takes” to obtain this valuable asset. If you anticipate putting restrictions on the use of the insurance benefit, then such may be accomplished through a will and so the policy should, in such cases, “pour over” into the will.
Another example of a good question to ponder is the old probate adage: Avoid dividing ownership in real estate. Certainly, if you own real estate at your death, it is almost always best to either leave the entire property to one person, or to a trust, or to order that the property be sold and the assets divided. But from time to time, you have compelling reasons not to award real estate to just one person. Talk with your legal counsel to see what best fits your circumstances.
Q: Why it is a bad idea to make your children co-executors
A: While Texas allows you to name co-executors to probate your will, it is almost always a bad idea. Money often (there is a strong temptation here to say “invariably”) makes enemies of the best of friends. Put only one in charge, if possible.
Q: I have given a power of attorney, I don’t need a will anymore, right?
A: A power of attorney may be viewed as a mirror image of a will. Whereas a will is not valid until death, a power of attorney is generally valid immediately and dies when you die. In sum, you may need both to adequate take care of contingencies involved in your estate. In this connection, it is rarely wise to give a power of attorney to a non-spouse unless trust and family harmony are absolutely inviolate. An adult child with a parent’s power of attorney, can destroy the estate even before they’re gone. That is not the key to famly harmony at the furneral.
Q: We are not going to have any more children. Why should I list what will be inherited by children born after my will is written?
A: No one never knows what they don’t know. I guess if you and your husband are 70 years old or more, then it’s a safe bet to exclude after-born children. But I’ve seen dozens of times where grandparents have adopted their wayward son’s unwanted child, as their own. An adopted child is a “child” for purposes of inheritance.
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What happens to my property if I don’t have a will in Texas?
If you die without a will, the state of Texas has thoughtfully written one for you. Not really, but the state imposes certain rules of inheritance in such cases. This is known as “dying intestate.” We call the laws governing the division in such instances “intestacy laws.” If you are a lawyer, it seems pretty straightforward. Joe dies, survived by his wife, Judy, and their three children. He has no children with anyone but Judy. Judy gets all of the community property. Joe also had some land and stocks he got from his parents. Judy gets one third of the stocks. The remaining two- thirds are split evenly among the three children. Judy gets a life estate in one third of the inherited land. The children get the rest of the inherited land.
Juan dies survived by his wife, Linda, their daughter, Sophia, and Juan’s daughter from an earlier marriage, Debbie. Because Juan had a child who was not also Linda’s child, Linda gets the one half of the community property she already owned. Juan’s one half is divided equally between Sophia and Debbie. Juan also had a collection of gold coins that were given to him as a gift, and a rental home that he owned before the marriage. Juan, Sophia and Debbie equally divide the coins. Sophia has a 1/3 interest in the rental home during her lifetime, and, at her death, it is equally divided between Sophia and Debbie.
Dolly has no children. She is survived by her husband, Al. Al inherits all of their community property, and all of Dolly’s separate, personal property. The house Dolly owned before their marriage goes one half to Al, and the other half is evenly divided between Dolly’s parents, or, if her parents are dead, the other half is divided among Dolly’s brothers and sisters. Orlando dies with no wife. His children evenly divide all his property. If he has no children, his parents inherit. If he has no parents, his siblings inherit. If he has no siblings, his nieces and nephews inherit. If he has no nieces and nephews, one half of his property goes to his father’s parents and their descendant’s, and the other half goes to his mother’s parents, and their descendants. And on it goes. If Orlando truly has no lineal ancestors leaving descendants, the state of Texas, ever helpful, steps in and collects. When this happens, we say the property escheated to the state. As you can imagine, this does not happen often. When it does happen, it is most often small bank accounts or a patial interest in land that is not very valuable. The more property people have, the more their relatives seem to keep track of them, and the more friends seem to be around to assist in trasporting them to a lawyers office to write a will.
If you are thinking that that sounded pretty simple, than, as you can imagine, I have not explained all the heirship possibilities. A surviving spouse is entitled to certain properties which will be the subject of a later blog. Also, critical is the fact that, without a will, you must have a court proceding to determine who the heirs, under the applicable statue, should be. This means an aditional action, called a proceeding to determine heirship, which I will also go into in a seperate entry. It also requires, in many circumstances, a dependent administration, which I will also go into in a separate entry.
In sum, if there is any property which will need to be legally transferred at your death, I can think of no circumstances where not having a will will not cause additional headaches and expenses to your heirs. And in many cases, it can result in your property being divided in a much different manner than you would have wanted. If only you had gotten around to telling everyone how to divide your property at your death. Perhaps by writing it down and signing it in front of two witnesses, and a notary, and with the guidance of an attorney. If you have questions regarding this, or another matter, please contact my office at 936-435-1908 or 281-723-2791 to schedule an appointment with an attorney. Visiting this blog does not create an attorney- client relationship. Information should not be considered legal advice.
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What can I do in Texas if I think the executor is cheating me?
Although I regularly advise clients not to appoint their children as co-executors, I have a lot of sympathy for heirs who are not appointed executor, and feel that they have been left out of the loop. Trust this advice, being a co-executor with a trustee who you think is cheating you, will often not increase your recovery in probate , but will most certainly increase the lawyer’s fee. So, while most executors are honest, there are enough bad examples to listen carefully when someone sits across from my desk and tells me that they think their sibling or step parent is cheating them in probate. In such a case, there are remedies.
The first step is usually to take a close look at the inventory and appraisal. Executors are required to file an inventory and appraisal of all the assets in an estate within 90 days of being appointed. It is possible to get an extension on the 90 days, but in the vast majority of cases, an extension is not sought, and the inventory is either filed or delinquent by the 91st day. If there are assets that my client is aware of that were not included in the inventory and appraisal, this could be the first sign that the executor is not acting in good faith. I do, however, caution my client that life insurance policies and accounts that have passed by beneficiary designation or right of survivorship will not normally be located in the inventory and appraisal.
If the executor has either not filed the inventory and appraisal, or has filed a clearly fraudulent one, it is possible to ask the Court to remove the executor. Frequently, however, it does not get that far. I have had an executor file an amended inventory and appraisal, and cut checks to the other heirs within three days of my first contacting the executor’s attorney. An attorney contact does not always produce such dramatic results, but commonly, when the executor discovers that the other heirs have retained their own attorney, he is suddenly much more cooperative about listing and distributing assets in a timely manner.
The Texas Probate Code also allows any person interested in the estate to demand an accounting from an independent executor fifteen months after the administration is opened. The accounting must list all property belonging to the estate, and must list what the executor did with the property. The executor is also required to list all the debt that have been paid, and any debts or expenses that are still owing by the estate, and any property still being held that belongs to the estate. The accounting must also include any facts which would justify the failure to fully distribute the estate. The executor must also include “such other facts, as may be necessary to a full and definite understanding of the exact condition of the estate.” If the executor does not send a sworn accounting within 60 days, he may be taken to Court and the Judge will order the accounting.
If two years have passed since the estate was opened, an heir may petition the Court to order the assets of the estate distributed.
If an executor fails to comply with any of the provisions above, any interested person, or the Court on its own motion, may seek the removal of the executor. Costs, expenses, and attorney fees of incurred in seeking removal of the executor may be paid out of the estate.
An heir may also bring a suit for damages for failure to deliver property when ordered. The Court will then enter an order finding the executor liable for the original amount due, plus ten percent for each month after the date of the demand.
Unfortunately, if the executor has spent the money and is now judgement proof, it can be difficult to collect. For this reason, if you suspect that an untrustworthy executor has been appointed, it may be in your best interest to hire an attorney to represent you immediately. By communicating with the executor’s attorney, and making sure that the executor follows the requirements of his position, it may be possible to prevent a fraud from ever occuring.
If you would like representation in an estate for which you were not appointed executor, please contact my office at 936-435-1908 to schedule an appointment in our office in Huntsville or The Woodlands. Sugar Land or Stafford clients may contact our office at 281-723-2791. We represent clients from Magnolia, Montgomery, Spring, Klein, Humble, Conroe, Huntsville, Sugar Land, Stafford as well as other areas located in Harris Brazoria, San Jacinto, Trinity, and Montgomery Counties.
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What is a Dependent Administration?
“Dependent Administration” words which sometimes send a chill down the spine of an administrator who pictures himself or herself trudging a weary path to the courthouse steps (and even a wearier path to the pawnshops, to determine which estate assets should be sold to pay the mounting legal costs). Many imagine a humming estate lawyer browsing a brochure of the latest yacht models (in anticipation of a fat fee). If you are reading this because an attorney just told you that you will need a dependent administration, dry those eyes! It isn’t usually that bad.
On the other hand, if you are reading this because you have heard that dependent administrations are bad news, and you do not want your heirs to have to deal with one, and you are also looking for the best way to avoid it, then you are in luck. A dependent administration is usually easy to avoid. Clearly the easiest advoidance measure is to have a Texas attorney draft your will. Over 90 percent of dependent administrations occur based on two circumstances: 1) there was no will; or, 2) the decedent tried to save a few hundred dollars and used a will that was not drafted by a Texas attorney. There are few, if any, Texas attorneys who could not at least avoid this pitfall for you–nevertheless, I have seen but a few do-it-yourself wills that could.
But I don’t want to dodge the question. A dependent administration is the probate procedure that you ocassionally hear about on the radio, striking fear into the hearts of retired and elderly everwhere. A dependent administration is a type of probate proceeding wherein the Court oversees every aspect of an estate. In most cases this means that the executor or administrator must post a bond, hire appraisers, submit an annual inventory, petition the Court for permission to sell any property or distribute any assets, and file a final report with the Court. If you do not trust any of your heirs to honor your final wishes, you may even want to require a dependent administration. I have successfully petitioned the Court to require one where there was a high level of distrust between the heirs and evidence of bad faith. However, if you do have someone you trust as your executor, you will want to allow them to be an indendent administrator, which will minimize the time and expense of probating your will after your death.
There is no way to tell you exactly how much a dependent administration will cost, as much depends on the amount of work involved. If the estate’s assets are all pretty “liquid” (easily exchanged for cash), it is sometimes not that bad at all. If multiple motions and hearings and accountings are required, and one of the other heirs is distrustful or actively fighting the administrator, it can cost a substancial portion of the estate. Of course, you have the protection of the Court needing to approve the attorney’s fees. But you have to pay for the attorney’s time in getting the same court approval, so it is a bit of a two edged sword.
Finally, a great way to avoid a dependent administration is to have all the heirs agree on an independent administration, and agree on who should be appointed.
If you have any questions regarding this, or any other legal matter, please contact my office at 936-435-1908 or 281-723-2791 to schedule an appointment. Visiting or reviewing this blog does not creat an attorney- client relationship. Information found here should not be considered legal advice.
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Probating the estate of a loved one often gets harder, not easier, when it is delayed.
Andy and his wife bought a home in Mayberry, Texas. After their son, Opie was born, Andy’s wife passed away. Andy was heartbroken. He didn’t like dealing with the funeral and all the well-wishers, and when it was all over, the last thing he wanted to do was go see a lawyer and probate his wife’s estate. So he never did. His wife really hadn’t had that much. Most of their accounts were joint, and Andy continued to live in the house, and slowly paid off the medical bills that had accumulated during his wife’s illness.
Andy lived a long, life, and after he died, Opie married and continued to live in the house. Like his father, he never quite felt up to going through the court process. Now Opie needs to go into a nursing home, and he has a buyer for the house. The problem is, the house is still in his father and mother’s name. Opie, who is not really up to these things anymore, is given the task of probating not one, but two estates. And his lawyer tells him that he needs to find two disinterested people who knew his mother and can swear to how many children she had and how many times she was married. Opie didn’t even know his mother. A task that would have been easy for Andy to handle soon after the death, now seems overwhelming for Opie.
Soon after a loved one’s death, the task of seeing a probate lawyer, and going to Court may seem overwhelming. But like most things in life (or in probate), the task never gets easier simply because it is delayed. As I often handle probates I try to be both sympathetic and understanding to clients who have lost loved ones. Just know this: the State of Texas has made the probate process as simple as possible. Your first appointment to the lawyer can be very short, and only needs to cover a few, basic matters. Many clients find it a great relief to know they have someone they can call with the inevitable legal questions which arise. In almost all cases, there is just a single hearing before a Judge, and we will you a “rehearsal” of what will be asked of you in advance. The probate judges in Harris, Walker, Brazoria, and Montgomery Counties are all understanding. Together, we will walk you through each step of the process, and will handle most details for you. If you have been delaying the probate of a will, please call for an appointment in Huntsville, Conroe, or The Woodlands, Texas, at 936-435-1908. Sugar Land or Stafford residences may contact us at 281-723-2791. Let us help you put this worry behind you.
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Where should I keep my will?
There are a lot of wills located in safe deposit boxes across the state of Texas. And as long as your beneficiaries (or heirs) know that you have a safe deposit box, and where it is located, then this is a great place to keep your original will. The Texas Probate Code allows representatives of a bank to let a spouse, parent, or adult child of a deceased person to search the safe deposit box for a will. They should remember to bring a certificate of death to the bank. And if a will is found, the bank can release it to either the named executor, or to the Court, after making a copy and obtaining a receipt. Banks are required to keep the copy of the will for four years. If a financial institution refuses to allow a search, then Texas Probate Code Section 38B allows a probate court to order a search of a safe deposit box. Under these circumstances, the court sends a representative who accompanies the bank representative and the person searching. If a will is found, it is then submitted to the Court. When a court order is used, it makes it highly unlikely that a will kept in a safe deposit box will be “lost” by a disappointed heir.
At one time it was common for attorneys to keep original wills with their business files, and give their clients a copy. I originally thought, cynically, that this was to ensure that the attorney who drafted the will also got a fee for probating it later. However, I have had enough of my own clients ask me to keep original wills to understand that clients also expect to benefit from this arrangement. I always refuse to keep the original will because I don’t believe doing so benefits the client. Attorneys die just like other people. They also move, retire, or change professions–and yes, lose things. And so what happens to client files? The most colorful experience I had with this was attempting to track down an original will where the attorney had been disbarred and then moved to Las Vegas. I found his old partner, who directed me to the attorney’s last operational office. The old landlord then told me that the attorney had skipped-out on his rent, and he had burned all the boxes and boxes of files the attorney left in the office. Needless to say we did not recover that will. Fortunately, we were able to give ample evidence as to what had happened to it, and the Court allowed us to probate it as a lost will. Do not leave your original will with your attorney.
Texas Government Code 118.062 provides that the County Clerk can charge you a nominal fee for keeping your will for “safekeeping filing.” A safekeeping filing is an ideal solution. Just keep in mind, few heirs know about this procedure. Therefore, if you do not specifically tell your heirs that your will is filed with the County Clerk’s office, they are likely to discover it only after giving up their own search, and hiring an attorney to file an expensive intestacy proceeding. If you move to a new county, there’s no need to re-file the will in the new county. However, heirs still need to know where you orginally made your safekeeping filing. As a practical matter, very few people file their wills with the County Clerk. This is largely because most are simply unaware of that option. Unless they change their policies, both Harris and Montgomery County current require the Testator to file their own will–in person. If you rewrite your will, you also have to go, in person, to get the old will out of safekeeping. However, the great advantage is that the Court now knows that your will exists (and if the County Clerk has gone out of business, then probating a will is probably the least of your heirs’ concerns).
A safe located within your home might also be a good place to keep your will, provided that it is large enough not to be easily stolen. A small safe will be a thief’s #1 target. The thieves will likely be frustrated after hauling away a heavy safe, and cutting it open, only to discover your personal papers. Nevertheless, their frustration will not get your safe, or your will, back. A filing cabinet is less likely to be stolen, but should only be used if it is both fireproof and floodproof. Another option available to almost everyone is the freezer. If you place your documents in a ziploc bag in your freezer they are somewhat fireproof, floodproof, and readily accessible as well as unlikley to be stolen. Of course, they are also easily disposed of by accident or intentionally, so if there is someone who is going to be unhappy with what you have written, you will want to choose a more secure option. You will also want to be sure and let your heirs know to check your freezer, as it is unlikely to occur to them on their own.
If you expect your will to be controversial, then I recommend best place to keep it is with the County Clerk. If you move to another location in Texas, then a copy may be filed with the county of your new residence. As stated, if the contents of your will will be welcome to everyone, than any place mentioned above will work, just let your heirs know which location you chose.
If you would like to see an attorney about either writing or probating a will in Harris, Walker, San Jacinto, Trinity, Montgomery, or Brazoria Counties, please contact my office at 936-435-1908 or 281-723-2791 for an appointment in either The Woodlands, Huntsville, or Sugar Land.
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