Updated: Sep 27, 2021
Dear Mr. Premack: My husband and I recently moved to Texas from Illinois. Do we need to make any changes to our Wills? - RS
Welcome! Texas is a community property state while Illinois is a common law state. Your out-of-state Wills should be modified. Here are some Texas formalities, among others which your experienced Texas legal counsel should consider so your desires can be fulfilled.
A) Texas allows for appointment of an Independent Executor. If the Wills have the correct instructions, your Executor will not need to be supervised by a Judge after you die.
B) Texas allows for a Self-Proving Affidavit. This allows the Judge to admit your Will to probate without tracking down the people who acted as witnesses. Texas law does recognize that other states have similar laws, but it is far easier if your Will conforms to the law of the state in which you now reside.
C) Texas allows for Waiver of the fidelity bond. Although Texas law requires your Executor to purchase an expensive bond to guarantee ethical behavior, most people select someone they deeply trust and with the proper wording in a Texas Will, your Executor can do away with the bonding requirement.
D) Texas allows for separate property if you have items that you still want to treat as separate property. You and your spouse can agree, in writing, to adjust legal classification of your assets as community or separate to meet your needs.
After a move is also a good time to review the gifts (devises) you have given under your Will. For instance, if you purchased a new house in Texas have you addressed ownership in the Wills? Have you made back up plans to operate if both you and your spouse die in an accident?
Consider establishing a Living Trust or using a Texas-specific Community Property Survivorship Agreement to avoid probate. If assets are properly funded into a trust or placed under survivorship, the survivors will have a much easier transition.
You should also update these legal documents to match Texas law:
A) Durable Powers of Attorney for Financial Management. This allows an agent to pay bills, sell items to raise cash, and to handle all finances. If a have set up a Living Trust, the Durable Power of Attorney is still needed to cover assets you may have outside the Trust, like an IRA account.
B) Medical Power of Attorney, which authorizes individuals of your selection to make medical decisions for you should you become too ill to understand the situation. Texas may be the only state that still requires a specific legal format for the Medical Power of Attorney. The 2021 Legislature refused to pass a bill that would have allowed more flexibility in how you express your medical instructions.
C) Directive to Physicians. If you so desire, the Directive can instruct your doctors and family that you refuse artificial life support if you have a terminal irreversible illness that will cause death no matter what treatments are provided. Texas law, like many other states, still does not allow “death with dignity” so this is as close as you may come to controlling medical care before your death.
Paul Premack is a Certified Elder Law Attorney, handling Wills and Trusts, Probate, and Elder Law issues. He is licensed to practice law in Texas and Washington.
First published June 30, 2021.