• Matthew A. Jirkovsky

Frequently Asked Questions - Wills

Here are some several frequently asked questions concerning a Last Will and Testament.

1. What is a Last Will and Testament?

A Last Will and Testament (or a will) is a document that determines how your property will be distributed and, most of the time, who will manage your estate upon your death.

2. Where do I store the original will?

Some attorneys will store your original will for you and give you copies. If your attorney does not store your original will, you should keep your will with your other important documents. Above all, make sure that your executor knows exactly where you stored your will.

Ideally, you should place your will in an area where it would not be destroyed. Most wills come with a cover page or some other material that provides at least some protection. A fireproof safe is often a good place to put your will. You should probably place your original will either in a waterproof bag or envelope and then in a fireproof safe.

A safety deposit box is probably not the best place to store a will, as issues often arise with accessing the safety deposit box. As often goes, your executor needs the will to get into the safety deposit box, but cannot get the will because is, regrettably, in the safety deposit box.

There are ways around this. For example, Texas law allows courts to order banks to turn over wills in safety deposit boxes; however, this requires a court order which might result in additional costs, attorney's fees, and delays in probating your will. A simpler option is to ensure another person, such as your executor, has access to your safety deposit in the event of your death.

If all else fails, most county clerk's offices will permit you to deposit your will with them.

There is arguably no place that provides absolute certainty that your important documents won't be destroyed. If it does get destroyed, you should probably consult an attorney.

3. If I change my mind, how do I change or revoke my will?

There are several ways of changing or revoking your will. These methods are as follows:

  1. By making a new will that states it is revoking all prior wills;

  2. By destroying your will; or

  3. By signing a codicil, or an amendment, to your will. A codicil is a document that makes changes to your will but does not cancel your entire will. A codicil has to be signed just as a will is signed

Destroying your will without another in place may result in your estate going through intestate succession. Other laws may apply, but you should probably consult an attorney if you wish to alter, destroy, or amend your will.

4. How does my executor locate my original will?

A great practice is notify your executor and beneficiaries of the location of your will after you execute it and inform them if you ever moved it.

If you have a copy of the will, you may write in the corner of the copy of the will where the original is located. However, do not mark or write on the original will.

5. What if my executor passes away?

In the event your primary executory dies, the court will most likely appoint your alternate executors unless they have also passed away or are unable to serve. If none of the alternates can be appointed, the court may consider other family members or third party professionals.

6. Can I disinherit someone in my last Will?

Yes, you should clearly state that intention in your will. This is subject to certain limitations imposed by laws that protect spouses and minor children.

7. What if my executor does not want to probate my will?

If your named executor elects not to probate your will within one year from the date of your passing, they should deliver the will to the clerk of the court that has jurisdiction of your estate. Other family members may decide to probate your will should the executor fail to do so or fails to deliver your will to the clerk.

8. What if my will was lost or destroyed?

In Texas, if your will was last seen in your possession and the will cannot be located, then there is a presumption that you destroyed the will with the intent of revoking it. This presumption may be overcome by evidence that indicates that you did not have this intent or that some other person fraudulently destroyed it.

Copies of wills may be probated, but any uncertainties may provide leverage or another avenue for those who would contest your will.

If your will is lost or destroyed while you are still alive, you should consult an attorney about redoing your will.

***This blog post should not be taken as legal advice nor does the information contained create an attorney-client relationship. The above is general information. I am a Texas attorney licensed to practice Texas law. If you reside in another state or move after executing such documents, other laws may apply. You should consult an attorney for any specific estate planning questions.***

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