Perfect example of how NOT to handle a Will

This column first appeared in the San Antonio Express News on March 5, 2018.

Dear Mr. Premack: I have a question about my mother’s holographic will. My father died 22 years ago. Afterward, my mother bought a house. Two years later she started living with a man; they never married. My mother was in the hospital, and she told me her wishes. I wrote them on a paper for her and she and two witnesses signed it. One of her instructions was that her boyfriend never have to leave the house. After she died, my brother and sister don’t want to follow her wishes. In her wishes she asked me to be her executor. Now what do I do? – Y.G.

Texas law recognizes the validity of two kinds of Wills: holographic and formal. A holographic Will must be entirely in the handwriting of the Testator, must be dated, and must be signed by the Testator. A formal Will must be written, dated, signed by the Testator, and signed by two witnesses. Your mother’s Will is in your handwriting, not hers, so it is not a holographic Will. If it was only signed by her, it would not be a Will at all – but it was signed by two witnesses, so it likely qualifies as a formal Will.

In the Will, she expressed her wishes regarding a) appointing you as Executor, and b) that her boyfriend be able to live in her home. A proper Texas Will should, among other things, include c) self-proof, d) waiver of bond, e) waiver of court supervision, f) various powers granted to the Executor, g) disposition of her assets to various named devisees, and h) contingency plans in case any named devisee predeceases the Testator.

Since you hurriedly wrote the Will for your mother and you are not an attorney, the Will is very likely sketchy about all those details. Your brother and sister are resisting following her instructions but may be on solid legal grounds if those details are vague, unclear, incomplete, or confusing. While you were trying to help your mother under difficult circumstances, Texas law says that writing her Will for her was illegal practice of law by you. A person can legally handle her own legal issues without a lawyer, but someone else – like a daughter – cannot handle legal issues for another person, even her mother.

What do you do now? Hire an experienced estate attorney to file your mother’s Will for probate. Under her incomplete Will, Probate will be a more time consuming and expensive procedure. It is sad for all involved that your mother owned her house for 20+ years and did not take time to see a lawyer for a well-drafted legal estate plan to save time, save money, and eliminate family conflict.

If the court appoints you as Executor, you must be bonded and supervised by the court. Again, a proper Will would have avoided those costly inconveniences. Her boyfriend would, then, be entitled to some kind of right to occupy the house. Depending on the words in the Will, he may have life estate or may just be able to rent the house from the estate. He certainly does not become owner of the house, and the litigation from your siblings should clarify if he must pay rent, pay the real property taxes, pay for home maintenance, pay for homeowner insurance, and make any monthly payments if there is a mortgage. The high cost of settling those issues in court could have been avoided if your mother had, with forethought and planning, provided clear binding instructions in a proper attorney written Will.

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.

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