Announcing the Formation of Howell Legacy Planning!

 I'm excited to announce that after many years of practicing with large law firms, as well as acting as a director for a large financial firm's multi-family office, I am starting my own law firm, Howell Legacy Planning.

You can visit our web site here:  Howell Legacy Planning

Howell Legacy Planning can handle:

• Estate Planning
• Probate
• Guardianships
• Trusts
• Powers of Attorney
• Directive to Physicians
• Beneficiary Designations
• Retitling of Assets
• Family Office Consulting

We hope you find value in the posts on this blog, and if you need assistance with your estate planning or probate needs, or if you have questions about your particular situation, you can schedule a free consultation on our web site.

Thanks in advance for visiting our site!

What Were They Thinking? Why Self-Written Wills are a Bad Idea

 

I wanted to share a couple of problems which came across my desk recently which serve as warning signs to people who attempting to prepare their own Wills, either handwriting them out or using software that purports to handle these types of documents. 

Both of these were prepared and executed by people on their own without legal counsel.

The first was a Will that by and large was correct in the body of the Will. However, when it came to the signatures, I found a problem. In Texas, a typewritten Will (which this was), has to be signed by the Testator (the person creating the Will) and witnessed by two individuals above the age of 14. Texas also has a provision where the Testator and the witnesses can sign what is known as a "self-proving affidavit," which allows the Will to be probated without the necessity of the witnesses having to come to court and give testimony that they were present when the Testator signed the Will, that the Testator was above the age of 18 and of sound mind, etc.

Unfortunately in this situation, the Testator signed the Will and the self-proving affidavit, but the witnesses only signed the affidavit--there were not even any signature lines for the witnesses on the Will (I will add here that the Testator who prepared the Will was a patent attorney, which only goes to prove that lawyers are their own worst clients). Prior to 1991, this would have rendered the Will completely invalid. Fortunately, Section 59 of the Texas Estates Code was changed in 1991 to provide that in this type of situation, the witnesses' signature to the affidavit will be considered a signature to the Will if necessary to prove that the Will was signed by the Testator, but the Will can no longer be considered self-proven, meaning that either one or both of the witnesses to the affidavit will have to give testimony in court as to the execution of the Will, or two witnesses will be needed to prove up the Testator's handwriting. 

Moral: Make sure that you have the Testator and the witnesses sign not only the Will, but also the self-proving affidavit. Added notes: make sure the witnesses are over the age of 14, and not related to the Testator or a beneficiary under the Will.

Second problem I encountered:

A gentlemen died with an estate of approximately $2 million. His son brought me the Will, which had been prepared by his father, using forms he had cobbled together from form books and other people's Wills, apparently. 

Dad's first wife had died and he subsequently remarried, so he wanted to make some provisions for the second wife, who did not get along at all with Dad's children. Dad started out by making some specific bequests worth about $250,000 to his children. In the next Article, he left "all my remaining property in trust for my wife for her lifetime." The rest of the Article provides the terms of the trust, which on termination was to be paid to her estate (note: doing this would certainly cut his children off from this share of his estate, since it is very unlikely she would leave any of this property to Dad's children).

The next Article is where things get unusual. It provided that he left "all the rest and remainder of my property to my children in equal shares." He now has created, in effect, two residuary clauses leaving all his property in very different ways. It is painfully obvious that he had no idea what he had written and the amount of conflict and confusion that would cause. 

It was unclear who was to receive the residuary estate, so we had to file what is known in Texas as a Petition for Declaratory Judgment with the probate court to have the court determine who the proper recipient of the residuary estate will be. 

Sometimes, in a case like this, you could go back to the attorney who drafted it and ask: What happened here? What did you mean? What do your notes say? Such extrinsic evidence would normally be admissible if the intent cannot be gleaned from the plain reading of the Will. However, in this case, the drafter of the Will was the Testator, and his intent died with him, so we will have to resort to other means to determine the ultimate beneficiaries. 

Moral: Don't be penny wise and pound foolish when it comes to drafting such an important document such as your Will. Get competent legal counsel to help in drafting your documents--and don't forget to read what they have drafted! Ask questions--what does this mean? Show me the Articles where the property gets distributed. What happens is this person does not survive me? You've worked hard to acquire your assets. Don't inhibit your plans for these assets with second-rate software where you can draft your own Wills or with attorneys whose specialty is not in the estate planning area.

What Happens If You Die Without a Will as a Texas Resident?

 

If you pass away without a Last Will and Testament in Texas, the state's intestacy laws come into play to determine how your estate will be distributed. This process can be complex and may not always align with your wishes. Understanding these laws can help you see the importance of having a will and planning your estate.

Intestate Succession in Texas

Intestate succession laws in Texas dictate how an estate is divided when you die without a will. The specifics depend on whether you were married, had children, or other close relatives. Here’s a breakdown of the primary scenarios:

1. Survived by Spouse and Children

If you are survived by a spouse and children, the estate is divided based on whether the children are from your current marriage or a previous relationship. If all children are from the current marriage, your surviving spouse receives all your community property (property acquired during the marriage) and one-third of your separate personal property (property acquired before your marriage or by gift or inheritance). The remaining two-thirds of your separate personal property and your separate real estate are divided among the children.

If you had children from a previous relationship, your surviving spouse retains their half of the community property and one-third of the separate personal property. Your children inherit your half of the community property, two-thirds of your separate personal property, and all of the separate real estate.

2. Survived by Spouse, No Children

If you are survived by a spouse but have no children, your surviving spouse inherits all community property and all your separate personal property. Your separate property real estate is divided, with your spouse receiving one-half and your living parents or siblings receiving the other one-half.

3. Survived by Children, No Spouse

If you are survived by children but no spouse, your entire estate is divided equally among the children. This includes both community and separate property.

4. No Spouse, No Children

If you leave no spouse or children, your entire estate is divided among other relatives in the following order of priority: parents, siblings, nieces and nephews, grandparents, aunts and uncles, and cousins.

The Probate Process

In addition to your property passing in a manner that you may not find in accordance with your wishes, when you die intestate in Texas, your estate may go through a more complicated probate process. This is a legal process where the court oversees the distribution of the deceased's assets according to state law. Here are the key steps in the probate process for an intestate estate:

1. Determination of Heirship: In order to determine who the proper heirs are to your estate, a court hearing will need to be held to determine who your actual surviving heirs are according to the Texas Estates Code. An attorney ad litem will have to be appointed to represent all possible heirs (a cost paid from your estate). The probate administration cannot proceed until this hearing is held, which might be anywhere from one to three months after your death.
   
   
2. Appointment of an Administrator: The court appoints an administrator to manage the estate. This person is usually a close relative, such as a spouse or adult child. If no relatives are available, the court may appoint a neutral party.
   
   
3. Inventory and Appraisal: The administrator must create an inventory of the deceased's assets and have them appraised. This includes real estate, personal property, bank accounts, and investments.
   
   
4. Notification of Creditors: The administrator must notify creditors of the deceased’s passing and settle any outstanding debts from the estate.
   
   
5. Distribution of Assets: After debts and expenses are paid, the remaining assets are distributed to the heirs according to Texas intestacy laws.

Challenges and Complications

Dying without a will can lead to various complications and challenges:

• Family Disputes: Intestacy can lead to disagreements among family members about who should receive what portion of the estate.
  
  
• Increased Costs: The probate process for an intestate estate can be more time-consuming and expensive than for an estate with a clear will as there will be additional paperwork, court filings and appearances on behalf of the attorney.
  
  
• Unintended Heirs: Without a will, the state’s default rules apply, which may result in assets going to relatives you did not intend to benefit.

Conclusion

Dying without a Last Will and Testament in Texas can create a complex and often stressful situation for your surviving family members. The state’s intestacy laws provide a framework for distributing assets, but this process may not reflect your wishes and can lead to confusion, increased attorney costs and delays. 

Creating a will ensures that your estate is distributed according to your desires and can provide peace of mind for both you and your loved ones. Planning ahead is a crucial step in managing your legacy and protecting your family’s future.  Howell Legacy Planning can assist with your estate plan so you don't have to encounter the issues outlined in this post.