Updated: Jul 3, 2019
This column first appeared in the San Antonio Express News and other Hearst Newspapers on April 1, 2019.
Dear Mr. Premack: My friend was very ill and had no Will. I got a printed form for her, and she filled it out and signed and dated it. I witnessed it, and we had a notary notarize it. It says I should be executor. A few weeks later, she died. Her husband owned a house. When he died a year ago, he left it to her in a handwritten Will. I wrote it out for him, and he signed and dated it, and I witnessed, and we got a notary. How do we get the house into her name? She did not have any children, and her Will just says the house should go to her heirs. What is next? – CL
You are in the middle of a very dubious scenario. Let’s start at the beginning, with the husband. He owned a house, and signed a paper with the intent that it be his Last Will and Testament. It is handwritten, but in your hand not his. It is signed and dated by him. Under Texas law, this does not qualify as a holographic (handwritten) will because it is not his handwriting. Also, under Texas law, a non-holographic will must have two witnesses. It has at least one.
One legal issue, then, is whether the notary’s signature can count as the second witness. Generally, the answer is “yes” so long as the notary was in the room, saw the individual sign, and saw the other witness sign. So, this document may qualify as husband’s Will and may be recognized by a Texas probate Judge as legally valid.
His Will has not, however, been offered for probate. Hence, there is no record that he left title to the house to his wife. The Will should be probated in order to create that record. You do not mention appointment of an Executor in his Will, but it may be possible to probate it as a Muniment of Title where an Executor is not needed. Also, his Will is not “self-proven” so the witnesses will need to appear in court to testify about the validity of the Will.
When his probate is complete, his wife should be recognized as owning the house. She, of course, died about a year after him and her Will has many of the same technical legal issues. If the court recognizes the notary as a second witness, then her Will should be accepted for probate by the court if the two witnesses testify as to its validity.
Her Will poses a few other difficult issues. First, you say that you are appointed as Executor. You do not mention if you are allowed to act without bond, or to act without supervision by the court. If the Will does not expressly waive those requirements, then probate will be much slower, complex, and more expensive.
Second, you say her Will leaves the house to her “heirs”. I assume that word is used, and that the Will does not identify any specific individuals. If so, then you as Executor do not have authority to distribute title to the house until the court determines the identity of her heirs. In this context, it is as though she did not have a Will due to its failure to identify the individuals who inherit from her.
Texas state law must be applied to her family fact pattern during another legal procedure called a “Determination of Heirship”. The court must appoint a second attorney to represent the unknown heirs, which adds to the expense. Eventually, someone in her family (her parents if alive, or her siblings if alive, or nieces and nephews) may be identified as the proper heirs at law.
Because this couple used forms instead of paying a lawyer to draw proper valid legal Wills, their estate administration is going to be far slower and more expensive. Here is the moral of the story: the money you spend on a lawyer now to do proper, valid estate planning is paid back many times by simplifying or eliminating the court procedures after you die.
Paul Premack is a Certified Elder Law Attorney with offices in San Antonio and Seattle, handling Wills and Trusts, Probate, and Business Entity issues. View past legal columns or submit free questions on legal issues via www.TexasEstateandProbate.com or www.Premack.com.