San Antonio Express-News
October 24, 2006

Creating an efficient Texas Will

copyright 2006, Paul Premack

Last week’s column answered questions from a Utah couple who moved to Texas. They wanted to know if the trusts they created in Utah will work in Texas (the answer was “yes, if modified to accommodate community property law and the new tax laws”). I also mentioned that the Wills they wrote in Utah should not be relied on in Texas, and promised more details this week.

The purposes of making a Will are to identify your heirs, to define what assets they will receive, to nominate an Executor, and to streamline the process as much as possible. A Will can be “valid” without being streamlined and efficient, but an inefficient Will slows down the legal process and costs more to use.

Here’s an example. Phyllis has a Will she copied from various forms. She signed her Will and had two of her grandchildren witness the signature. The Will recites that “I bequeath to the persons named below, if he or she survives me, the property described below: to Tom all my worldly possessions, to Bill all my worldly possessions, to Rita all my worldly possessions. If a beneficiary predeceases me, the bequest to such person shall lapse, and the property shall pass to my grandchildren. John shall receive a portion of the estate once all expenses have been resolved, such amount to be determined by my executor.”

That phrasing is hard to interpret. Does the estate go just to Tom or does it go in equal shares to Tom, Bill and Rita? If Tom is not alive (if he dies before Phyllis) does the estate go to Bill and Rita, or do the grandchildren get Tom’s share? If Tom, Bill and Rita get all the worldly possessions, how can there be anything left for John?

Clarity is vital in a Will. Contradictions and ambiguity may lead to expensive court-based interpretation of the testator’s intent.

In other parts of her Will, Phyllis made more legal mistakes. First, she named Bill as executor but failed to mention whether he would act free of bond. Texas law requires all executors to post bond unless the Will waives bond. Since the person nominated as executor should be someone trustworthy, waiving the bond makes sense and saves money.

Second, she failed to say Bill could be “independent” executor. Without that designation, the executor must be supervised by the court in a much more complex probate procedure. The problem can be fixed if all the heirs agree to allow Bill to be independent executor, but agreement is not always easy to obtain.

Third, she used the grandchildren as witnesses to the Will and also named the grandchildren as contingent devisees. Texas law restricts the ability of Will witnesses to receive a bequest, so the grandchildren either lose their status as devisees or the Will fails for lack of valid witnessing.

Forth, she failed to make the Will self-proving. Ideally, Phyllis and two non-interested witnesses would have signed an affidavit establishing all formalities were legally followed. The affidavit must have wording that satisfies a specific state law. If so, it eliminates the need to have the witnesses testify in probate court so keeping track of and inconveniencing the witnesses is no longer necessary.

By pulling her Will together based on forms, Phyllis may have saved a few hundred dollars in lawyer fees. However, she included confusion, mistakes and inefficiencies. When she dies, the heirs will pay an inflated legal bill to overcome those problems. Cutting corners to save a few bucks on your Will is not a good idea; having your lawyer create an efficient, unambiguous Will saves money in the long run.