Whether they were written twenty years ago when your kids were young and needed a guardian or written quickly before going on a long trip, or whether they were carefully crafted with legal and professional help, some of you ALREADY HAVE A PLAN IN PLACE. I congratulate you.
Is the plan still good? Was it ever good? Over these next five posts, you can do five simple checks to see if your current plan (be it a Will or a Living Trust) is effective. If you answer YES to ALL the questions, your plan is well on its way. If you answer NO or you are not sure, look around KLF’s site to find more answers (willpartner.com or theketchersidlawfirm.com). Maybe it’s time to consider a new plan.
FIRST 100 SECONDS: CAN YOU FIND YOUR DOCUMENTS?
You laugh, but many people do not know where their ORIGINAL documents are. And honestly, it’s only our sincere hope that this is only a 100 second endeavor. If you have to search longer than 100 seconds, our apologies. But they should be more accessible than that anyway. Which leads to the second part of this check:
Do your loved ones know where your ORIGINAL documents are? If you can’t find them or don’t know where they are, it’s likely your family or friends don’t either. And they need to.
In our probate business, we have families that come to us with copies of Wills but no original. This is setting your family up for PROTRACTED PROBATE PROCEEDINGS and HIGH LEGAL FEES if they cannot locate the original.
So, your first 100 seconds: Find you original documents. Tell your loved ones where they are and how to access them. If you don’t have your documents, you plan is not good and will not work.
The “Legal” Talk:
Why do I need an original when I have a copy? In the State of Texas, a Will that is not produced is presumed to be revoked by the deceased. The party bringing the probate action, even with a COPY, must overcome this presumption which includes, at the very least, bringing in the witnesses to the document and witnesses to the testator’s handwriting. Texas Probate Code §85 reads in pertinent part:
A written will which cannot be produced in court shall be proved in the same manner as provided in the preceding Section…but, in addition thereto, the cause of its non-production must be proved, and such cause must be sufficient to satisfy the court that it cannot by any reasonable diligence be produced, and the contents of such will must be substantially proved by the testimony of a credible witness who has read the will, has heard the will read, or can identify a copy of the will.
Legal jargon aside, there is work to do (work = legal fees) to prove up a will copy or to probate a missing will.
In 2010, the Appellate Court in El Paso explained the procedure for a missing will in In re Estate of Perez: “A presumption of revocation arises when the will proponent does not produce the will in court, and it was last seen in the testator’s possession…The will proponent must establish the will’s nonrevocation by a preponderance of the evidence.” 324 S.W.3d 257, 261 (Tex. App. – El Paso, 2010, no pet.).
The party with a Will copy must prove by a preponderance that the will is correct and was not revoked. It is not an easy endeavor, and the legal fees earned are not based on success. Your family could pay for the attempt to probate your will copy and still be denied by the court. Then your wishes are ignored and your family must now probate your estate without a will. So, FIND YOUR DOCUMENTS!