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The Importance of Safeguarding Your Original Will

  • By:John Portnow

Eddie Nash, a New Hampshire businessman, died in 2004.  Ten years after his death, local police found his cement cemetery vault cracked, his casket opened, and his remains searched.  The police issued arrest warrants for three individuals, including Mr. Nash’s daughter.  The daughter told police that she believed her father was buried with “the real will.”  However, after disturbing Mr. Nash’s great slumber, the daughter and other culprits uncovered little more than a pack of cigarettes in his hand.  To read more about the story, click here.

Safeguarding your original Will has many benefits in addition to giving your heirs one less reason to crack open your coffin.  For example, your Will may provide a different disposition of your estate than what Texas law would provide in the absence of a valid Will.  Let’s assume that you left a Will but your heirs are unable to locate the original Will or even a copy.  Assume further that you died married to a second spouse, you had an estranged child from a brief first marriage, and you and your second spouse had two children together.  Your Will left everything to your second spouse and if the spouse predeceased you, everything went to the two children.  Since the Will cannot be located, the Texas laws of intestacy apply.  Under Texas law, all of your community property goes to your children, including the estranged child.  Further, your children, including the estranged child, have a 2/3 interest in your separate personal property (which includes everything but your land, mineral interests, and real estate) and they inherit all of your separate real property, except for a 1/3 life estate which goes to the surviving spouse.

Additionally, admitting an original Will to probate is much easier than admitting a copy of Will to probate.  Before admitting a copy of a Will to probate and appointing an executor, the Court will require testimony from two individuals familiar with your handwriting, but who don’t inherit under the Will, that the signature on your Will is in fact yours.  Alternatively, the Court could hear testimony from one of the witnesses who signed the Will that he or she did indeed witness you sign the Will.  The executor named in the Will would also have to satisfy the court that there is no reason to believe that you revoked the Will being offered for probate, although Judges are sometimes lenient with this requirement.  If neither of the Will witnesses can be located and your heirs don’t know anybody familiar with your handwriting, it’s possible that your Will won’t be admitted to Probate, which would at the very least significantly delay your heirs’ ability to access your financial accounts and other property.  By contrast, if your heirs locate the original Will, there is no need to bring any witnesses to court other than the executor named in the Will.  Absent any extenuating circumstances, the executor answers a few simple questions in front of the Judge and the Judge issues an order admitting the Will to probate and officially appointing the executor.

Finally, if neither the Will nor a copy can be located, the default method of administering an estate under Texas law is a dependent administration, which is heavily court supervised and significantly more expensive and time consuming than an independent administration, which is almost always how an estate is administered if the decedent left a Will drafted by a competent Texas attorney.

April 7, 2019

Posted in: Estate Planning, Heirship, Inheritance Rights, Intestate Distribution, Probate & Estate Administration, Wills Trusts
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