Dear Mr. Premack: My Will was prepared in Indiana but I am now a Texas resident. Is the will still valid? – RLW
Your Indiana Will is likely “legally valid” in Texas, but it is not “legally efficient” in Texas. The legal concept behind Wills is similar throughout the U.S., but each state has unique laws and procedures to be considered. If your Will does not match the laws of the state in which you are living, it won’t work as efficiently and may not accomplish your goals.
For instance, Texas is a community property state while Indiana is a common law state. In Texas, earnings during your marriage are owned one-half by each spouse, regardless of which spouse received the paycheck. In Indiana, what you earned belonged solely to you and what your spouse earned belonged solely to your spouse.
Now that you are a Texas resident, assets you acquired in Indiana will be treated as “quasi-community property.” Each asset is assigned the character (community or separate property) it would have had if you had lived in Texas when it was acquired. Many items, like savings accounts or CDs that were your separate property in Indiana, are treated as community property in Texas, unless you make proper Texas documents.
The difference is significant because in your Will, you can only dispose of your one-half of the community property (and you can dispose of any separate property you may still own). Consequently, it is very important for you to revise your Wills to follow Texas law. You may not have as much flexibility in Texas to dispose of certain assets as you had in Indiana, and your spouse may have more control over various assets now that you are Texas residents. (On the other hand, the two of you could agree to convert items of community property back into separate property, but to do so you must work with an attorney to sign a contract that complies with the Texas Family Code.)
For efficiency, you also need your new Texas Wills to conform to special procedural laws contained in the Texas Probate Code. Even if the concepts are similar in Indiana, the implementation will be different between the two states. Without these efficiency enhancements, probate in Texas can be very complex. With proper Texas documents, probate in Texas can be a very straightforward process. For instance, a proper Texas Will should include:
Independent Administration. Texas law allows you to waive court supervision of your Executor by placing special wording into your Will. First, your Executor should be labeled as “independent executor” and second, your Wills should state that the Executor “shall not be required to take any action in any Court in the administration of my estate other than the probating of this Will and the filing of any inventory, appraisal and list of claims required.”
Waiver of Bond. Texas law requires an Executor to post a bond for the protection of the heirs named in the Will. If you have selected an honest and trustworthy Executor (like your spouse) then you should waive the bond. Waiver must be specifically authorized in your new Texas Will, or else bond will be mandatory.
Self-Proof. Texas law requires that when your Will is offered for probate, evidence must be presented to the court establishing the Will’s authenticity. The Judge can legally accept a Will that has a “self-proving affidavit” attached which conforms to Texas law. The affidavit recites that all formalities were legally followed.
You should also update your Indiana durable power of attorney and your Indiana advance medical directives. The disability issues which those documents address are controlled by state law, and the ones you prepared in Indiana will not be usable in Texas. Online sites that offer these documents might be tempting, but you should avoid them unless they are offered by a licensed Texas attorney. Reasons for avoiding unlicensed forms sites are outlined on my website at www.Premack.com//FAQ.htm.
Paul Premack is a Certified Elder Law Attorney practicing estate planning and probate law in San Antonio.
Original Publication: San Antonio Express News, February 18, 2011