17 Mar Where There’s A Will There Are Many Ways: Shelly Joyner, Associate
Every week, we encounter many different types of wills from those created using an online self-help product to those hastily scribbled on the back of a napkin before a medical procedure. The family and friends of the testator (the will’s author) are often surprised that wills, in general, don’t avoid the probate process, and wills written without the assistance of a licensed attorney often times complicate the situation thereby making the probate process cost more and last longer than necessary.
So, what are best-and-worst-case scenarios when faced with a will to probate?
Best Case Scenario
The decedent left a perfectly executed, ORIGINAL will, in an easy to find location, and all parties (family, beneficiaries and creditors) agree on EVERY, SINGLE item. If this is the case, you’ll have a relatively SHORT relationship with the Texas courts. On average, a perfectly executed will can be probated in about 6 months.
Worst Case Scenarios
There are many mistakes that make up the worst case will scenarios. Let’s just talk about a few of the most common:
- The will is not self-proved. For a will to be self-proved, the “testator” (the person making the will) must sign the will at the same time as two witnesses and a notary public. If the will has not been properly notarized, then one of the witnesses to the will has to testify in court that the will was properly executed. The witness has to testify to things such as the fact that both of the witnesses were over age 14, that the testator was of sound mind, that the testator knew what he/she was doing at the time, and that the testator was at least 18. This presents a few potential problems. When a will isn’t properly executed, the testator is playing the odds that the witnesses (a) will outlive him/her, (b) can be located, and (c) will be available to testify at the court hearing.
- You can’t find the original will. Under Texas law, if an original will can’t be found, it is assumed to have been destroyed and, therefore, revoked. A copy of a will can be offered for probate. However, it can only be done after there are heirship proceedings to determine who the heirs of the estate would be without a will. Then those people must be notified and given a chance to dispute the proposed copy of the will.
- The will is holographic. A holographic will is one that is done completely in the testator’s handwriting. If a holographic will has all the proper elements of a will (which it rarely does), additional witnesses will be required to attend a court hearing. These witnesses will have to testify that they have good reason to know what the testator’s handwriting normally looked like and that the holographic will matches it.
- Parties disagree. This is a can of worms that can explode in a lot of different, messy ways. Even if a will is perfectly written and properly self-proved, disgruntled parties can cause lengthy delays. Parties can claim that the testator didn’t have full mental capacity to make the will. They can claim that there was undue influence and the testator didn’t really mean to make the bequests in the will. They can claim there were children that the testator didn’t know about. They can claim that the named executor isn’t really qualified. They can claim that the property isn’t worth what the inventory process asserts. They can claim that the testator owed debts that hadn’t previously been reported….and on…and on…and on. Problems like this can cause a probate to last as long as people continue to disagree or until the money runs out.
If a loved one (or you!) has a will in place but are unsure if it meets the requirements for the BEST-CASE scenario, we would be happy to review the existing will. We can also explore different estate planning options that avoid the probate process altogether – like a revocable living trust. Unlike a will, a revocable living trust doesn’t have to be proven in court. Because it doesn’t have to be proven in court, it isn’t public record. Because it isn’t public record, it doesn’t invite things that can go wrong.