This column first appeared in the San Antonio Express News on January 19, 2018.
Dear Mr. Premack: A few years ago, a good friend asked me to keep the original of her Will in my lockbox. Her kids do not get along with each other. She said that if she kept the Will at home, she feared one of her kids might find and read the Will, triggering some argument. Last week my friend died, and I realized I don’t know what I am supposed to do with the Will. It doesn’t seem right to give it to one of her kids. Any suggestions? – L.C.
You are right to be careful. If you gave the Will to one of her adult children, you have no idea how the Will could be mishandled. You do, however, have a legal obligation to take action. So, what is the best procedure to follow?
If you know the identity of the person nominated as Executor in the Will, you could release the Will to that nominee. If so, be sure to get a written receipt from the nominee. But you need to be satisfied that the nominee is trustworthy and is going to properly honor the Will and its instructions, which is not something that you can guarantee.
You should, then, opt for the safer option. Under section 252.201 of the Texas Estates Code, when the custodian of a Will learns of the Testator’s death, the custodian shall deliver the Will to the clerk of the court which has jurisdiction over the estate. In Bexar County, that means the Statutory Probate Court Clerk. In surrounding counties, that means the Clerk of the County Court.
Under a modification to that law (effect September 1, 2017) the Clerk cannot charge you a fee. Further, the Clerk will seal the Will after making note of the nominated Executor. If you also submit a notarized affidavit stating that the Testator (your friend) has died, then the Clerk is required to contact the nominated Executor about the deposit of the Will. If the nominated Executor comes forward, the Clerk must deliver the Will to the nominated Executor. You will have performed your legal responsibility.
In a related concept, Attorneys may be interested in another clause in that new law. For decades, it has been the practice of some estate planning attorneys to retain possession of their clients’ original Wills. It is now clear, however, that the responsibility of protecting those Wills can get expensive and be an administrative burden. The new law allows Attorneys (and others in the same position) to deposit those original Wills with the County Clerk after making a diligent effort to locate each Testator and return each Will. If those efforts do not work, the Attorney can deposit each Will with the County Clerk along with the last known address of the Testator, the nominated Executor, and each nominated successor Executor. The clerk will charge a $5 fee for each Will deposited.
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.