The Missing Will

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March 31  |  Estate Planning/Probate  |   Dermot Rigg

A client recently contacted me and asked me to handle the estate of a cousin who had passed away several months earlier. The decedent evidently had a will – but no one could find it. Because there was no will to probate, I recommended that the decedent’s three children file an heirship proceeding and appoint my client – or someone else that they trusted – to be independent administrator of the estate. When a person dies without a will, an independent administration under the Texas Probate Code is relatively inexpensive, but it depends upon all the heirs agreeing on this type of proceeding. However, one of the decedent’s children would not agree to an independent administration. The only alternative was a court-supervised administration, but no one wanted to take on the burden and expense of serving as the court-appointed administrator of this small estate. Everything is now in limbo, with bills piling up and no one to take care of the decedent’s property. Eventually, the property will be foreclosed upon for non-payment of taxes, and each of this gentleman’s three children will lose one third of their inheritance.

There are several lessons to be learned from this story:

You need a will. Have a professionally prepared will that leaves your estate to the people you want to inherit from you. Don’t try to do this yourself; even lawyers who don’t specialize in probate and estate work can mess them up.

Keep your will in a safe place. A safety deposit box is best, but a secure place in your home will do if people you trust know where it is.

Don’t keep your will a secret. By all accounts, the decedent was very business like, and had his affairs in order. Unfortunately, he was also very secretive, and those he loved and wanted to give his estate to didn’t know if he actually had a will, or what was in it. Let someone you trust – preferably a family member – know about your will, or at least where it is kept. You should also have copies available, since a copy of a will can be admitted to probate in Texas under some circumstances.

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