The Legal Corner by Sam A. Moak: Frequently Asked Questions About Wills

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The information in this column is not intended as legal advice but to provide a general understanding of the law.  Some of the information in this column was prepared by the State Bar of Texas and is reprinted in this column with permission. Any readers with a legal problem, including those whose questions are addressed here, should consult an attorney for advice on their particular circumstances.

As most of you are aware, my law practice if focused primarly on etate planning and helping families transfer their assets from one generation to the next.  Quite often I am asked questions about Last Will and Testaments.  Therefore, in this week’s column I will address some of the more frequently asked questions regarding Wills.

Does a Will expire?

Wills are valid indefinitely.  The notary’s commission may expire on a certain date as indicated by their stamp, but that does not mean the Will expires.  As long as your document was signed on or before the expiration of the notary’s commission, your document is good.

Do I ever need to change my Will?
You should have a new Will prepared if any of the following occur: If your marital state changes; If you have children and currently none are named in your Will; If you become a resident of another state; If someone named in your Will as Executor, Guardian, Beneficiary, or an alternate to one of those position dies; Or, if you want to change the distribution of your property.  In addition, it is advisible to update your Will if you buy real estate or you acquire a large amount of money by inheritance or gift.

Should I make copies of my Will?
While you can, remember that only the original is admissible in court in most circumstances.  If you do make a copy, follow these guidelines: A) DO NOT remove the staples from the original.  If you do so, pages may get lost or put back out of order, and it may appear that pages have been removed and substituted, and B) Clearly mark any copies as a copy by writing COPY on each copied page in a bright colored ink.  My recommendation is NOT to copy the original and to leave it stapled together until it is reviewed by the court.

Can I make written changes to my Will?
DO NOT make any pencil or pen (ink) changes or marks on your original Will.  They are not legally recognized and may invalidate the entire document.

Where do I store my Will?
I recommend a safe deposit box.  Texas law allows for the removal of Wills and insurance policies from a safe deposit box by the Executor or Alternate Executor as long as they are on the access card.  If you keep your Will in a safe or lockbox in your home, make sure that the executor or alternate executor knows the location of the documents and how to gain access to the box (i.e., key or combination).  Be sure to also check the fire proof rating of the safe or lockbox. 

Traveling with your Will?
Do not take your original Will with you when traveling for any reason.  Do not ship important documents such as your Will, Power of Attorney, life insurance or titles.  It is best to store these documents as stated above and communicate that with the executor.

Should I notify individuals named in my Will?
It is important to notify the persons you have named as executor, guardian or trustee in you Will.  I do not recommend you communicate to beneficiaries about your Will.  Situations could change and changes to your Will could be made. 

Letters of Instruction to your Will?
You may leave a non-binding letter of instruction with your Will.  In this document you can request that specific items of personal property be given to certain named individuals.  This should be a written or typed, signed and dated list prepared by an attorney so as not to be confused with being a Will itself.  It is also recommended you leave a list of the current name, address, and telephone numbers of everyone named in your Will.  

What do I do with my old Will?
Destroy all previously executed Wills, or drafts of Wills, that you have in your possession.  The best time to do this is when you execute a new Will. 

I hope that these questions and answers help with keeping your estate plans current.  An attorney can assist you in all these aspects and help you determine what is appropriate for your particular situation.  If you have further questions or are considering establishing an estate plan, you should consult your attorney.

Sam A. Moak is an attorney with the Huntsville law firm of Moak & Moak, P.C.  He is licensed to practice in all fields of law by the Supreme Court of Texas, is a Member of the State Bar College, and is a member of the Real Estate, Probate and Trust Law Section of the State Bar of Texas.