The following is provided for informational purposes only and is not, nor should it be construed as legal advice.
Many people are not certain what information will be needed by their attorney to prepare a Will that expresses their exact intent.
Some believe that they will need to assemble records of all of their property; others believe that they must inventory and list each piece of property that they own. Not either of these assumptions is usually true, in part because the assets that they own today will probably not be the assets that they own at the time of their death. The “red widget” of today may be the “blue widget” of the future.
The primary general question that needs to be answered is, “What do you want to happen to your property after your death?”
After you have determined in general terms the answer to this question, you should meet with an attorney who is experienced in asking the right questions to “flesh out” your wishes.
The initial conference will probably last an hour and should concentrate more on your intent and wishes than it does on a list of your assets.
Your Will, if properly drafted, should be very specific to your particular circumstance, and the finished product should express the exact nuances of your wishes instead of fitting into a generic pattern as sometimes found in computer-generated Will forms. Your completed Will should also take into consideration such foreseeable changes in your circumstances that may occur in the future. It should take into consideration the possibilities of future births and deaths and not necessitate re-drafting every time a circumstance in your life changes.
The following are just some of the things that you will need to consider before completing a Will in Texas.
Fiduciaries – These are persons or entities that you appoint to be “in charge” after your death to follow your wishes.
Executor – The most obvious of these is who will be your executor. In most cases, this will be a family member or trusted friend, but this can bring about some unintended results. For example, if you name your spouse or a friend who has a life expectancy close to your own, be sure to also consider who will serve if your originally-named executor is unwilling or unable to serve. Many persons believe that the executor cannot also be a beneficiary; this is not true.
Trustee – If you are leaving your property to a child or children and then, if they predecease you, to your grandchildren who are likely to still be living at that time, who can serve as trustee? Obviously, it cannot be your deceased child, so could it be another of your children, the surviving parent (if any) of your grandchildren? In some cases, should it be one of your other grandchildren, provided they have reached a certain age or attained certain goals that you dictate (i.e., anything that you believe will demonstrate their ability to perform those duties). You may also wish to consider the possibility of appointing a corporate trustee if you believe that the situation will need such an appointment.
Guardians – If it is possible for you to still have minor children (i.e, under the age of 18 years) at the time of your death, whom do you wish to have serve as guardian(s)? This is the person who will decide where your children live, where they go to school, how they are disciplined and in general how and where they are reared.
Circumstances that are Often Overlooked – I see many Wills which have been prepared by a formula or by computer programs that end the passing of property with “to my children, per stirpes.” “Per stirpes” is defined by Black’s Law Dictionary as, “by the root or stock” and is normally used to mean, “follow the bloodline.” If the Will ends at that point, there are a large number of questions that are left unanswered. One of the most common incomplete Wills encountered by this firm might say in essence, “leave everything to my spouse and if he/she does not survive me, then to my children “per stirpes.” This simple approach may work fine if both you and your spouse are fortunate enough to outlive all of your children and/or your grandchildren are no longer minors. If, however, one of your children predeceases you and one of your “per stirpes” heirs (grandchildren or great-grandchildren) is under the age of eighteen years, your Will no longer specifies how that property should be administered. You cannot just hand a five-year-old child a check covering her inheritance and say, “have a good life.” If your plan is to be complete, it must also instruct your executor and trustee on how to administer those assets.
It is suggested that you ponder each of the points mentioned above, keeping in mind that things change over time. After you have done so, meet with an attorney of your choice to make certain that your wishes are expressed in such a way that they will become a reality, even if life circumstances and property issues have changed at the time of your death.
James Bright has been admitted to practice before the Federal Courts for the Southern District of Texas and Eastern District of Texas as well as all of the Justice Courts, Probate Courts, County Courts at Law, District Courts, Courts of Appeal and Supreme Court for the State of Texas. He maintains an office in Houston and by appointment another at 208 McCown Street in the heart of historic Montgomery. Contact may be made by telephone (936) 449-4455 or (281) 586-8277. For more information about wills or probate in Texas, please see – www.houstontxprobate.com
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JAMES M. BRIGHT
14340 TORREY CHASE BLVD., Suite 150
Houston, TX 77014