What are a felon’s rights under a Will?

Dear Mr. Premack: I am 72 years old. I desire to leave my estate to my only son, and to let him be Executor in my Will. My husband died several years ago. However, my son was convicted of DWI a few years ago, and I am concerned that the felony on his record will mean I’ve got to choose someone else. Can he inherit if he is a convicted felon? Can he be my Executor? – ALA

Under Texas law, there are only a few instances where a person’s right to inherit is affected by a criminal conviction. First, the beneficiary in a life insurance policy “who is convicted and sentenced as a principal or accomplice in willfully bringing about the death of the insured” cannot receive the policy proceeds (Probate Code §41). The policy benefits are instead paid to the secondary beneficiaries named in the policy, or paid to the Executor of the decedent’s estate.

Second, a parent cannot inherit from the death of a minor child when the parent has been convicted for (or placed on community supervision or deferred adjudication for) an act that caused serious injury or death to a child. This would include crimes like murder, indecency with a child, assault or sexual assault.

Your son’s felony conviction does not fit either of those categories, so you can definitely leave your estate to your son. In fact, the Probate Code expressly states, “No conviction shall work … forfeiture of estate” except for the items listed above.

Despite the fact that he can legally inherit, you might ask yourself if he should inherit directly and without supervision. If his DWI conviction is an example of ongoing bad judgment and risky behavior, consider creating a trust inside your Will that names your son as beneficiary while naming someone with rock solid judgment as the Trustee.

In that way, you can protect the estate from rash decisions your son may be liable to make. You can even impose conditions before he becomes entitled to receive any distributions. For instance, you could require that his physician certify in writing that your son has been tested free of illegal substance abuse and shows no signs of alcohol abuse. If he cannot show he is clean, he does not receive money from the trust.

Although your son can inherit, he is forbidden under the law from becoming Executor of your estate. Probate Code §78 disqualifies anyone who is 1) incapacitated, 2) a convicted felon under the laws of any state or the US, or 3) a person the court finds unsuitable.

There are two exceptions the ban on felons: if the individually has been duly pardoned of the crime (which often takes action by the governor or president) or if the person’s rights have been restored by a court, then the individual may serve as Executor.

Paul Premack is a Certified Elder Law Attorney and a Five Star Wealth Manager (Texas Monthly Magazine 2009-2013) practicing estate planning and probate law in San Antonio.

Original Publication: San Antonio Express News, April 2, 2010

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Paul Premack has been a Board Member and has served as President of the Texas Chapter of the National Academy of Elder Law Attorneys (NAELA) and is a Member of the Washington Chapter of NAELA. He is *Certified as an Elder Law Attorney (CELA) by the National Elder Law Foundation as accredited by the Texas Board of Legal Specialization and the ABA. He is licensed to practice law in the States of Texas and Washington and handles Estate Planning and Probate in Texas and Washington, including and Bexar County and King County Probate, Wills, Living Trusts, Durable and Medical Powers of Attorney, and Elder Law. Premack writes the legal column for the San Antonio Express News which is syndicated in other Hearst Newspapers around the USA.

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