This column first appeared in the San Antonio Express News and other Hearst Newspapers on August 12, 2019.
Dear Mr. Premack: I have a Will, written some time ago, that leaves all my assets to my sister. I now would like to change the beneficiary to charity organizations, since she is very well off. However, my sister has a copy of the current Will. Since I am elderly, with no other family, how can I be assured that after my passing, my new Will is used and not overlooked for the old copy in my sister’s possession? I fear that perhaps her husband would not be truthful and would use the old will for probate. Thank you. JS
The court-based probate process is designed to avoid deceit and fraud, but as with any human endeavor it is not perfect. Texas law is clear that when you change your Will, the old instructions are ignored and replaced by the new instructions. In the past, this was often done with a Codicil – an amendment to the old Will which gave new instructions.
However, a Codicil is not the most secure way to change your Will. This is because a Codicil is an add-on to the old Will. It does not replace the entirety of the old Will. Rather, there is an additional document that, for instance, “eliminates section 2 of my Will which would give assets to my sister, and instead instruct that my assets go the Animal Defense League”. After you die, both documents should be submitted for probate so the court and your Executor can properly distribute your assets.
But a dishonest Executor and dishonest family could fraudulently and illegally withhold or destroy the Codicil. If the court does not know about the Codicil, all it sees is the old instruction that your sister should inherit.
There are solutions that work far better than a Codicil.
First, you can make a replacement Will with your new instructions. The replacement Will would be a stand-along document containing all your most current instructions. It would also explicitly state that the prior Will to your sister is revoked and void. In the replacement Will, you would appoint a responsible and durable Executor, like one of the area’s local banks. You would give the original of the Will to the bank, so that when you die, they can offer it to the court for probate.
If your sister brought forward the old Will (you said she only has a copy) the court would conclude that a) the old Will is revoked by the new Will, b) the copy is not entitled to recognition because it is merely a copy, not the actual original Will which you and the witnesses signed.
Second, after making the new Will you should ask your sister and her husband to return the copy, and should inform them it is revoked and replaced. But even though they may return the copy, there is no guarantee that they did not make another copy to keep. In that case, you must count on the Texas law which states that if the original Will cannot be presented to the court, the court must presume it was revoked. (Copies of Wills can be admitted to probate if the proponent, like your sister, can prove to the court that it was not, in fact revoked. But she would be lying, committing fraud, and very likely committing a crime if she did so.)
Third, you could establish a Living Trust, convey your assets to the Trust, and appoint a Bank to act as Trustee after you die. Assets in a Trust are not subject to probate, so even if she lied to the court to get control of your estate, neither she nor her husband would have access to the Trust fund (it would still legally go to the charities you picked).
Paul Premack is a San Antonio Certified Elder Law Attorney, handling Wills and Trusts, Probate, and Business Entity issues. View past legal columns or submit free questions on legal issues via www.Premack.com.