by Jennifer Johnston
Stupa (Buddhist funerary reliquaries/shrines), representing the enlightened mind
Grand Palace, Bangkok, Thailand - Photograph by Yahn Smith (June 1999)
Okay ... a little "dark" humor to kick off a serious topic ... one that I have been asked to write about ... and one that many of us find uncomfortable, or are hesitant for various reasons to consider or discuss. Still, at this time in our lives ... the "autumn" or the "twilight" ... or whatever euphemism we may prefer to deal with the thought that we are coming inexorably closer to death ... it is probably a good idea to give some thought to what we may leave behind ... other than ideally warm memories. Specifically, I am talking about what we may leave behind legally ... and how our choices in dealing with this (or not) may help or hurt our families and loved ones.
Some of you may know that I spent about 25 years of my working life as a paralegal, generally in civil litigation (usually defense) ... although having spent that long in the field of law (and a weeedy little place it can be sometimes) I have also gained some background in Wills and Trusts, Family Law and Probate, Living Wills, Physicians' Directives and Medical (and other) Limited Powers of Attorney. Let me say at the outset (and reiterate) ... I was a paralegal, not an attorney. I cannot give legal advice (nor can I argue a case in court); however, as a paralegal I did attorney-level work with my time often billed at attorney-level rates ... drafting from scratch numerous complex pleadings, briefs, discovery questions and answers and motions to compel (or resist) discovery, motions in limine, voir dire questions, and other documents. I had lots of client contact, including directly reporting to and updating our insurance carrier clients, and also handled in-depth investigations, deposition and testimony prep, jury analysis and legal research. I assisted my attorneys at trial on more than one occasion and took part in many settlement conferences and mediations ... including one where the evidence I found to refute the plaintiff's claims caused her to physically attack the mediator and run screaming from the building ... but that's another story, and I digress....
Succinctly, I cannot tell you what you should do; I can only impart a bit of knowledge, give some suggestions as to what you may want to consider ... and say that if you need legal advice to help you finalize earthly matters, or if there are intricate or difficult issues involved, then do consult an attorney. Most fees for most work in this area should be fairly nominal ... unless you have a really complicated family situation or a really huge estate or both ... and that fee may go a long way toward giving you and your family peace of mind, both now and after you are gone.
One final caveat: Except for three years in Denver, my paralegal work was done in the State of Texas, and it is the laws and statutes of Texas about which I am most knowledgeable. If you live in some other state, the things I say here may not be applicable ... or only partially applicable; nevertheless, there are many similarities in Family and Probate Codes of many states, and this may at least give you some questions to ask and thoughts to ponder ... and the impetus to check with an attorney where you reside.
I've known and/or seen many people over the years who procrastinate about making a Last Will and Testament. Some seem to think they have "plenty of time" ... others apparently think that by not making a Will they can somehow stave off the inevitable. As for "plenty of time" ... we just don't know. We may be "here today and gone tomorrow" as the old saying goes ... often with no warning. And as for "the inevitable" ... well, it is inevitable. Some people have said: "Gee, I don't really have much of an Estate to leave." I beg to differ ... particularly if you are wiped out by an Exxon/Mobil truck running a red light with a chronic (and previously convicted) drunk driver behind the wheel, or your hospital and/or doctor commits grievous malpractice resulting in your demise ... or some similar occurrence. Also, many of us have houses (even in the present market, most of them are probably worth something), cars, jewelry and other things of value. So....
It is not required that a Will be drawn by an attorney. You can hand write your own Will (called a holographic Will) ...
BUT: If you choose to use a holographic Will, it must be entirely handwritten; you cannot type it and simply sign it. A holographic Will does not require witnesses, and most attorneys advise against using a holographic Will ... some might say for self-serving and pecuniary considerations ... except as a last resort. Even though a holographic Will is legal and may be held valid, it can be problematic, and it is probably more efficacious to execute a Will which has been properly signed and notarized, with a self-proving clause. There are Will forms which can be obtained in most states (including Texas) that follow the preferred strictures for jurisdiction in your area.
BUT: If you prepare your own Will from a form (without an attorney), be sure to follow the Texas or other state statute(s) for the self-proving clause. In Texas, the self-proving clause must be signed by at least two witnesses over the age of 14 years, in your presence after they have watched you execute your Will and affirm the purposes therefor, and in the presence of a Notary Public for the State of Texas who has witnessed all signatures and the Testator's declarations. The Notary will then affix his/her Notary Seal to the document and record the signing in the mandatory Notary Book (which you and the witnesses must also sign). One of the reasons for the self-proving clause is that it obviates any problems if a witness dies before you do, cannot be located, or is otherwise unable or unwilling to testify should a disputed Probate action arise after your death.
Funerary statue at the Ming Tombs outside Beijing, China
Photograph by Yahn Smith (June 1986)
Major Caveat (regarding notarized documents in general): I would hope you all know this (and have followed it), but just in case.... I must point out that you should never, ever sign any document which requires notarization without the Notary being present to witness your signature. Under the laws of the State of Texas, a Notary is prohibited from notarizing any document that he/she does not see executed by the person signing it (with proper identification or personal knowledge of the person executing the document). Unfortunately there are a lot of insurance agents, bankers, mortgage lenders, and yes, attorneys who have no compunction about telling their clients to just go ahead and sign and the document can be notarized later. Also unfortunately there are Notaries who are only too willing to do what their "boss" says and don't insist that the person signing be present. There may be civil AND criminal penalties involved in such action(s) ... and your signature and/or the document may be held to be invalid, thwarting your intentions in making it in the first place. Several times throughout my paralegal career (and my service as a Notary Public for the State of Texas) I was requested to do this by attorneys I worked for ... who knew better ... and I always refused to do so unless I was present when the document was executed. Didn't make me popular with some attorneys ... but did make me sleep better....
Whether you hand write a holographic Will, or execute a Will in some other manner, you should designate an Executor ... someone you trust to carry out your wishes, and settle and distribute your Estate in a way that is most efficacious and economically beneficial to your heirs. It is helpful to also designate an Alternate Executor (or even two), in case the person you originally designate dies, or otherwise should "fail and/or refuse to act" when the time comes. A person's surviving spouse, or another member of the family, is frequently designated as Executor ... but this is not required.
Another really good reason for making a Will is this: A lot of people assume that when they die, their surviving spouse will automatically inherit everything. I cannot speak for some other states, but in Texas that is not necessarily so, and it has been so ruled in Probate case law. A person who dies intestate (without a Will) may have a claim laid against his/her estate by any surviving children and other relatives in accordance with the laws of descent and distribution. And while we would like to think that our loving children would never jeopardize the interests of the surviving spouse ... t'aint always so, nor should it be under some circumstances. Unfortunately I have learned (personally and professionally) that where there is a little money and/or property involved, nasty things can come out of the woodwork, at one of the worst times for any family....
Danger Danger Will (or Mrs.) Robinson: If you executed a Will many years ago, but have since divorced and remarried, BE SURE to change your Will if you intend your surviving spouse (and any children who may have been born or adopted as a result of that union) to benefit from your estate ... at least without potentially ugly, protracted and expensive legal battles. A divorce does not itself nullify the provisions of a Last Will and Testament ... only a superseding Will or codicil can do that with reasonable certainty ... and failure to take care of this "loose end" may also lead to expensive litigation which may diminish the value of your Estate.
Also: Please make certain that your life insurance is updated as to your chosen beneficiary. Even if you have a Will, if you die without having changed the insurance beneficiary from the former spouse to the current one (unless of course that is your intention), or to your child(ren), then the last person(s) named as beneficiary will likely be the one(s) to benefit from the insurance proceeds ... even if you haven't given them a thought in umpteen years and don't want them to inherit. The beneficiary designation is generally considered separately from the bequests in your Will, and insurance proceeds are usually not held to be part of your Estate unless the named beneficiary has predeceased you. Insurance companies are loath (for sufficient legal reasons and settled case law) to mess with beneficiary designations.
If you have a "blended" family (as many of us do) ... a second (or third) spouse and stepchildren ... and you want to make sure your stepchildren inherit a portion of your Estate, then please so state specifically in your Will, because they will not as a rule be considered your heirs-at-law. Of course you can adopt them, if you and they (and their natural parent if they are minors) are willing. (BTW ... it is possible, and easy, to adopt an adult ... but that is another can of worms, perhaps for another post).
HOWEVER: You may also want to incorporate a "Surviving Spouse" designation in your Will ... although sometimes, as the Wicked Witch said, "These things must be done dellll-i-cately." Briefly (I'll try): If you and your spouse have children from previous marriages and you (and/or your spouse) die intestate, then only the surviving spouse and any natural and/or legally adopted children will generally be considered as heirs to your Estate under the laws of descent and distribution. Non-adopted stepchildren may be considered to have no interest in or entitlement to any portion of your Estate. One area where this can become dicey is if you and your spouse both die in the same accident or occurrence, and it is difficult if not impossible to determine which of you died first. Then it may be left to the Court to rule ... and your children may be disinherited in favor of your spouse's children. You can have your Will drawn to say that in such event, "then Mary Jones shall be considered to have survived John Jones (or vice versa) and therefore shall be considered the surviving spouse" ... but be careful of the designation and make certain it is what you intend. It is helpful if you and your spouse can agree on this; otherwise expensive investigation and litigation may ensue ... and the bulk of your estate may end up in the hands of lawyers.
Defining "Spouse": Most of us think of a "spouse" as someone to whom we are legally and lawfully (and ceremonially) married. As always, the devil is in the details ... and in the terms "legally" and "lawfully." I don't want to scare anybody to death here, but there is probably something many don't know about "common-law" (a/k/a "informal") marriage in the State of Texas. It is verrrrry easssssy to be common-law married in Texas without even being aware of it. Believe me ... I worked on a couple of really interesting cases involving this, but won't bore you with the details now. If you have been living with someone for a period of time (and trust me, it doesn't have to be years), you may have done a couple of things that may trigger a legal finding of "common-law" or "informal" marriage. One of them is to have held yourselves out as man and wife; that is, introducing your partner as your wife or husband, or registering at a hotel as man and wife (Mr. and Mrs. John Smith, or whatever), even though you have not ceremonially married. Applying for credit together is another potential trigger. One basis for determining the validity of a common-law marriage may be something as simple as saying to others, "Oh, I consider us married" or "We just believe we are married (in the eyes of God, or whatever)."
[Sidebar: Texas is one of only nine states ... the others being Alabama, Colorado, Kansas, Rhode Island, South Carolina, Iowa, Montana and Oklahoma ... that recognize common-law, or informal, marriage. Please be aware that no longer living in a state where you may have (even unwittingly) entered into an informal marriage does not make that marriage null and void, and you may need to undertake divorce proceedings to extricate yourself from that union. In 1995, an "evidentiary presumption" was added to § 2.401 of the Texas Family Code to provide that "there was no marriage if no suit for proof of marriage is filed within two years of the date the parties separated and ceased living together." I do not know about the other states, but even with the "evidentiary presumption" this may be one of those "better safe than sorry" things as it is well-known by those who work in law that there is NO WAY of predicting what a Court, or a jury, may do in any individual case....]
This may be particularly significant to you if you are living with someone at the time you die. Despite any stated intentions of your Will, or any intention on your part not to enter into a marital arrangement, if your living partner is able to bring a successful suit to establish a common-law marriage under statute, then he or she may be entitled to a spousal portion of your Estate.
There is no such thing as "common law" divorce (as in Islam, where a divorce may be obtained by saying "I divorce you" four times), and you may be required to dissolve such a union just as if you had been ceremonially married. Of course if you were previously married (ceremonially OR under the criteria for a common-law marriage) but never bothered to get a divorce, then your present marriage may be deemed null and void ab initio (from the "git-go") because you did not have legal standing to enter into the second marriage, and any children born to the later union may be delegitimized. Also, if you were previously married but married again without troubling to get a divorce, that is also called bigamy ... and may incur civil and criminal penalties....
If you have any reason at all to think that you may have been common-law (or informally) married, I urge you to consult with a Family Law attorney to discuss the legal ramifications because numerous problems can result. Ignorance of the law is not bliss ... and may actually come back to bite you and your loved ones really badly....
Celtic cross in churchyard, County Tipperary, Ireland
Phorograph by Yahn Smith (June 2003)
If you don't have a Will, please do your spouse and/or child(ren) a favor and make one ... one that is likely hold up in Probate Court and will ensure that your directives and desires are followed. And, although such things may be difficult to discuss, try if possible to sit down with your children before you die and explain what your Will provides, and why such provisions are made. If you want to leave specific items to different children, this can be especially important, and can shortstop some hurt feelings down the road when Child A wonders why you left the family silver to Child B. I know that there can be some problems inherent in doing this ... you certainly don't want to spend your last years being chivvied by one or more children as to why he/she should get more than she/he. Nevertheless, if it is possible and you can do it with some degree of comfort, I believe it is the best way. As mentioned previously, from my personal experience, and from working in law for many years ... anytime there is a bit of money and/or property involved, people (some of whom you would least suspect) can get crazy ... and greedy.
One more thing: If you have pets ... please make certain there is someone ... a son or daughter, another relative, a friend ... who will be informed rather quickly if you die or become incapacitated, who is empowered to enter your premises and take care of your pets. It is ideal if you have already arranged with someone to take your pets and give them a loving home in such a case ... but if your friend or relative cannot or will not do this, then make sure that the person you designate will take the responsibility of finding your pets good homes ... or at least see that they are given to a no-kill animal shelter for (hopeful) future adoption.
There is much more to talk about and consider, gravely and legally speaking, about these later years of our lives ... so many fine points, so many hairs (and heirs) to split, so many little things that may ultimately loom large.... Among other things, there's another little Texas law that you might want to note. It involves "Homestead Rights" of a surviving spouse (and minor children, if applicable), who is entitled to, and may, continue to occupy the marital homestead until she/he dies, even if the deceased sole owner spouse wills or intends the house to pass to his/her child or children. But we'll save that for my next post.... this is growing to unmanageable proportions.
In the interim, if there is anything you might want to see addressed or discussed, please let me know and I'll do my best. If I don't know the answer, or the surmise, then even though I am retired, I am still deep in attorneys, some of whom remain friends many years from the time I worked with them.
One Final Thought (and perhaps a grim grin): Every time I have been near (or through) Amarillo, even since I was in high school, I have never failed to shake my head when I see an ad for "Boxwell Brothers" funeral home. Jeeeez! I understand it's an old family name ... but realllly....
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