Recently Married Persons Should Make New Wills

Astute persons realize that executing a will makes wedding-ringssense even for single individuals.  In fact, from the perspective of the estate planning attorney, working with single persons is often more challenging than working with married couples, regardless of whether they have children.  The single person may have difficulty determining who they want to name as beneficiaries or designate to serve as executor under their will.

The question this post addresses is what that single person should do if they marry.  The answer, as you might expect, is to update the will as soon as possible after the marriage.

It is not unusual for a single person to leave their estate to their parents or siblings.  But if that will is not changed after marriage and before death, how is the surviving spouse treated?  Do they inherit because they are were married to the decedent?  In Texas, the answer is a qualified “no.”

Some states have laws recognizing a pretermitted spouse.  Those laws provide that if a person marries after making a will that omits his or her spouse, the surviving spouse will inherit a share of the estate equal to that which the surviving spouse would have received if the testator had died without any will.  If such a law existed in Texas that would mean that the surviving spouse would inherit all of the couple’s community property and usually half of the decedent’s separate property.

But Texas doesn’t have a law recognizing a pretermitted spouse.  So in the case described above, the surviving spouse in Texas would retain ownership of their own half of the community property but would receive nothing else from the decedent’s estate.

This example serves to illustrate why it is important to consult with your estate planning attorney any time you have a change in your family situation.  In some instances and if your will is drafted appropriately, you may not need to make any changes to your will.  But as illustrated in this example, there are many times when changes in your family situation can drastic repercussions on your estate plans.  If you make a Will before you get married and would like your new spouse to be your beneficiary, it is important that you update your will.

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Are Firearms in Your Estate?

If you own any firearms or ammunition, you needgun_with_bullets to be especially vigilant in your estate planning.  Not only must you determine if your firearms and ammunition must be registered under the NFA and possibly other laws, but you need to ensure that your beneficiaries are appropriate persons to receive those items, and your executor and successor executors are also appropriate persons to receive, possess, ship or transport those items.  Failure to do this could get your loved ones in trouble with law enforcement authorities.

You may want to consider employing a gun trust, which is a special type of trust for owning certain firearms.  But you should also familiarize yourself with state and federal laws related to firearms and their transfer.  Certainly consulting a licensed firearms dealer should provide you much background.

If you are no longer using your firearms and ammunition, you may find it easier to dispose of those items now rather than passing on an undue burden to your loved ones, who may not be prepared to deal with these assets of your estate.

A great deal of federal firearm information can be found at the website of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) and their explanation of the National Firearms Act.

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Avoid Pitfalls of a DIY Will

old willSelf-preparation kits are becoming more popular but beware the hidden dangers of going it alone.  If you are going to purchase a self-preparation kit or online document, you should only view it as preparation for a meeting with a trained professional – a licensed estate planning attorney.

The growing use of DIY will kits, now more readily available online, is causing concern at a time when the relatively wealthy baby boomer generation start to pass on their assets, or what’s left of them.

The concern is seen most often by probate attorneys who are seeing a rise in their work to unravel the issues with these self-help wills.  These wills frequently include ambiguous provisions that family members dispute over, fail to include provisions establishing the validity of the will or are not executed properly.

We actively encourage all adults to make provision for their future, but most people have unique circumstances that require some modifications to any standard form to avoid confusion and misinterpretation.

Ironically, clients who come to our office most often claiming they just need a “simple will” are those with the most difficult issues to draft around.  Divorces, multiple marriages, a mix of biological, adopted or step children, small business ownership,  or any other complex financial affair or complicated family situation can all lead to complex drafting issues.  Similarly, single individuals with few close family or friends can result in difficulty finding proper people to serve as executors, agents and trustees.


Designating executors to handle estate.  If a choice is available you may not want to appoint a friend as an executor if they may not have the financial competence required.  Another problem can arise you designate a person older than you to serve.  They may die before you or be in poor health when you die and unable to handle administering an estate.  Another issue that may raise concerns with your beneficiaries is if you appoint a business partner who might have a conflict of interest with your distribution plan.  If family members are receiving different distributions from your estate, appointing one of them as executor could also raise conflicts of interest.

Finally, be sure you tell your family how to find your will.  All the planning in the world will not help if your loved ones cannot locate the estate planning documents you signed.  Ideally, you should review your plan with all family members together and with the attorney who drafted the document present.  Sometimes despite the best planning and drafting, when confronted by family members the explanation mom or dad gives to the children is not the same as they requested the attorney to draft.  So it is important that the understanding your loved ones receive actually coincides with what you included in your will.

Key points

❏ DIY and online wills should only be used as a planning guide; relying on them leads to problems.

❏ Choose an executor carefully.

❏ Don’t hide your will.


Posted in Divorce, Estate Planning, Inheritance, Probate, Safety Deposit Box, Will challenge, Wills | Tagged , , , , , , , | Comments Off

Where Should You Keep Your Will?

safety-deposit-boxI routinely provide my clients with suggestions on where to keep their will and other estate planning documents.  The original will is required for probate.  If only a copy can be found, the testator is presumed to have revoked the will.  Testimony can be presented to overcome that presumption, but it is certainly less risky, much easier and less expensive to present the original will.

Regardless of where you keep your will, it is very important that your family and executor know where to locate your will and estate planning documents.  That location should not be kept a secret unless you suspect family members may not want your will produced.  In that case, only tell your executor where your estate planning documents are and how to reach them if you become incapacitated or die.

Some clients tell me they intend to keep their will and other estate planning documents in their desk at home or in some other home filing system.  If that is where other important papers are kept it may be okay, but simply having important documents kept in such a manner leaves them more open to destruction by theft, fire or other natural disaster.

Other clients use fireproof safes installed securely in their homes.  These are certainly a step up from a simple file folder.  But be sure your family and executor know how to get inside the safe.  That may not mean giving them the combination, but you need to tell them where they can find the combination when they need to get access.

In my experience most clients who tell me where they store their estate planning documents most often mention a bank safety deposit box.  These are very secure.  However, unless there is a joint signer to the box who possesses (or who can obtain) a key, there will be a problem getting the will out of the box after the testator’s death.

The best way to solve this problem is to have at least two people at all times who can access the box.  This works well for married people, but once one spouse has died, the surviving spouse or any single person should think about providing joint access to another person so that when the second spouse or single person dies, getting the will is easy.

If you decide to have a person (other than a spouse) sign as a joint registrant on your safety deposit box be sure you select someone you have great trust in.  You may want to think long and hard about whether to select a relative who would receive an “intestate share” as an heir if you died without a will, but who will receive nothing if the will in the safe deposit box is probated.

If no joint registrant is on a safety deposit box, they cannot locate the key or the joint registrant is not available, the safety deposit box can be accessed by obtaining an order from the appropriate probate court.  Practically, it may be wise to speak with the bank where the safety deposit box is located to determine if they have any preferred method for proceeding.  An experienced probate attorney can then advise how best to proceed.

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Spousal Protections in Texas Probate

widow-and-childrenMany people think there is no reason to have a will because the surviving spouse will inherit everything from a deceased spouse.  But in many cases where there is not a will, that is not the case.  Particularly when the decedent’s property was his or her separate property or where the decedent had children not from the current marriage.  Even if there is a will, the decedent may have left much or all of his or her property to someone other than a spouse.

So what is a surviving spouse to do when it turns out that much of the decedent’s estate is not left to the surviving spouse?  What rights does the surviving spouse have?  Texas law provides a few protections just to protect surviving spouses in situations like these.

The Probate Homestead.  If the primary residence is owned, the surviving spouse may qualify for a probate homestead upon the passing of their spouse. This means the surviving spouse may live in the residence until his or her passing regardless of whether the home was left to them. The surviving spouse will have certain financial responsibilities if they wish to continue living there – payment of real property taxes on the residence and mortgage interest.

Exempt Property Set-aside.  Texas law allows a court to set-aside the homestead and exempt property for the use and benefit of the surviving spouse (also for minor children, unmarried adult children remaining with decedent’s family and any incapacitated adult child).  This property is exempt from creditors’ claims. The Texas Property Code describes what is exempt property.  If the decedent did not own all items described as exempt property, the court may grant an allowance in lieu of the items described as exempt property that are not a part of the decedents property.  This allowance may not be greater than $45,000 in lieu of a homestead and not be greater than $30,000 other exempt property.

Family Allowance.  Texas law provides for a family allowance for the surviving spouse, minor children and adult incapacitated children. It is meant to be a sufficient amount for their support and maintenance for one year from the decedent’s date of death and takes into account the separate property the applicants have to maintain themselves.

As you can see, these protections are not intended to support the family left behind long term, but may serve to allow the family to get along until the estate can be settled or other arrangements made for ongoing income.

Posted in Community Property, Debts, Estate Planning, Exempt property, Family Allowance, Homestead, Probate, Separate property, Wills | Tagged , , , , , , , , | Comments Off