The following transcript was excerpted from a June 22, 2020 virtual presentation on elder law, wills and probate in Texas by attorney Cynthia Fronterhouse. The event was organized and sponsored by CarePartners, whose vision is to be the leader in caregiving resources in Texas. You can click the image above or watch the recorded presentation on YouTube.
My name is Cynthia Fronterhouse and I am an attorney in Houston. I actually practice law with my father. He is semi-retired, but he has over 50 years of experience. He has always focused his practice on construction litigation, representing small companies, so when I joined him, so he could go enjoy his life, I really enjoyed meeting with the clients and their families, preparing for the inevitable as well as when they lost a loved one.
I grew up in the Spring Branch/Memorial area. I did go away to college to Smith College in Massachusetts and then I came back to Texas and went to the University of Texas Law School. I am married, and I have one daughter, age nine years old. Really helping families before they lose someone and then when they lose a loved one is really my passion and walking them through that process. It’s so difficult when you’re trying to process and grieve, and then having to deal with a lot of the probate aspects is tough. So that’s really what I’m going to focus on. Most people know what a will is and why it’s important, but then what happens when you do lose a loved one?
A will is a document that determines where your assets are going to go when you die. It doesn’t take effect until you’ve passed away, so once you pass away is when your will goes into effect. And one of the big cases that we had when I first started with my dad was one where one of his clients lost a brother, who didn’t have a will. When he died, he had two minor children. Watching the family go through that grieving process, and then having to see how difficult it was because the man didn’t have a will was what really inspired me to help people and educate people. That’s so important.
You can use a will to determine where your assets are going to go and to whom you want them to go. Also in your will, you can appoint a guardian to your children. Also in your will you can appoint an executor. The executor is only responsible for determining and following your wishes that are outlined in your will.
So what happens when you lose someone if they have what’s called probate? Probate is the process of authenticating the will. You file an application to probate a will with the court. You file the original will with the court and normally do it in the county where the person resided. You have to do that within four years. Then you file with the County Clerk. You have to wait 10 days because the will is posted at the County Courthouse and then, after 10 days, you set a hearing. At the hearing, whoever is the executor goes to the hearing, and has to prove up the will and authenticate the will, that this is the last will and testament of the deceased person. Then the executor has to take an oath to swear that he/she will follow the will and do what the will says. If you have a properly drafted will, it’s a very simple, inexpensive process in Texas.
An interesting thing for a lot of people now because they don’t feel safe because of COVID-19 and they may not feel safe going to an attorney’s office, and having two witnesses and having a notary public and the attorney, that people have been handwriting their wills. A lot of times, I have people ask, “Oh, well, can’t I just handwrite a will?”
Well, you can in Texas, but I would never advise you to do that. Even if you were going to do it, I’d say go talk to an attorney to make sure you do it properly. And if you do that, it’s more expensive and more time-consuming. In Texas, you don’t have to bring any witnesses to prove up a will, a properly drafted will.
I just had to probate a handwritten will. We had to have two disinterested witnesses come to the hearing. Right now, all the courthouses are doing the hearings via Zoom but normally you would have to drive down to the courthouse, find parking, sit there and wait, go before a judge and that’s always a little scary for some people.
Then we had to have those two witnesses prove up that person’s signature and prove up that that will really was that person’s will. I had it happened with another client and it took a long time to find two people, who knew his father’s handwriting and signature. So that’s always one of those problems to avoid. If you have a properly drafted will, it’s just much easier and simplified.
Once the executor is appointed, in most wills, they don’t require a bond. You don’t have to have appraisers so that’s another reason to have that properly drafted will.
In what we call a holographic will, where you’re just it’s all in one person’s handwriting, there’s a chance that the executor would have to have a bond. It’s also possibility that there won’t be an executor, and so now the court has to appoint someone. So those are kind of some of the interesting aspects of what happens when you have a will.
Now, what happens if someone dies without a will? Your property does not go to the state. It goes to your closest living relative, determined by the laws of the state of Texas. We call this “the intestate laws”. And you have to file an application to be appointed independent administrator and that’s what happened with my client, whose brother passed away. He filed to be appointed independent administrator. Well, my client’s ex-wife did not like that idea and did not want him (her ex-brother-in-law) to be appointed intestate administrator. So the judge determined that he was going to be appointed deep intestate administrator, which meant he had to get a bond and everything that he did had to be approved by the court. That is a much more expensive problem. It caused that money to come out of the estate, that was going to the deceited’s children.
So when someone dies without a will appoint you have to appoint someone as the administrator. You go down to a hearing and the judge is the one who determines who is the appropriate administrator.
In addition to that, you also have to have an heirship proceeding, if you die without a will. That means you have to prove who are the heirs of the deceited: Who are their children? Who is their wife? You have to have two witnesses that come down to the courthouse and give testimony as to how many marriages the person had and how many children the deceased had. Did he/she ever adopt any children? Did he ever have any other children who aren’t listed on the application? Also you have to have two people who know the family pretty well and know the history of the deceded’s marriages, who know the history of the deceded’s parents. Oftentimes this is where it causes people dilemmas. For my clients I’ve seen where they have to find two people who are willing to drive down to the courthouse and give testimony, as to the deceded’s history. That’s what if you die without a will, those are more of the hicoughs experience. Oftentimes if all of the heirs agree that one person can be appointed the administrator, then the administrator doesn’t have to have a bond.
If there are minors, it’s different. I have a client right now. She lost her husband and there are minors. The judge will require us to get a bond, which means she has to qualify for a bond. That’s an extra expense to the estate, and that comes out of what’s supposed to be going to the heirs. There’s going to be additional attorneys expenses and so those are just things to think about — whether or not you want to have a will and you want to save your heirs from that pain and difficulty, especially when they’re grieving. Those are a couple of the issues that you’ll find when someone has a will or when they don’t have a will.
In addition to in the heirship proceeding, there’s what’s called an Attorney Ad Litem is appointed. An Attorney ad Litem is appointed to represent the unknown heirs. A lot of times I have clients who ask, “Why do we need this? I know who the heirs are.”
If you’ve ever gone through this, you can probably understand. The judge and the court don’t know who the heirs are in that proceeding. So, this Attorney Ad Litem is appointed as an independent attorney and that person is responsible for talking to the two disinterested parties who were appointed.
The other thing, and this might be something some of you have gone through, is even if you’re a spouse and your spouse dies without a will, a lot of times I have people that say, “Well, everything’s community property. Everything my husband had is mine.” That still doesn’t matter. You still have to transfer everything in the eyes of the law.
I had one of my clients and her husband passed away, and all the bank accounts were in his name. The real property was in his name, and she. Everything was frozen. She was not able to get into the accounts, unable to access the money until we went through the independent administration process. That’s one of those hardships that I see with some clients especially married couples. They think, “Maybe I can just have both of us can have one will.”
Each has to have his/her own will. I tell all my married couples that you can give your property to whomever you want. You don’t have to give it to your spouse, although when someone does, I remind them that’s called an “I love you will.”
So that’s the importance of a will and probate and how you can avoid some of these obstacles as well as why they’re so important. That’s where you want to stay focused on and make sure that you have a will. The will doesn’t go into effect until you pass away, like I said previously, and why you want a will and how it’s very simple to ensure that those documents are done properly.
Another thing I just want to hit on is as I had mentioned earlier, you have to probate a will within four years. A lot of times I have people ask, “Well, we’re married. I don’t need to probate my husband’s will because he left everything to me and our house is community property.”
That’s not correct. You still need to probate that will because your spouse’s interest in the real property means any property needs to be transferred over to you. The process of doing that is the probate proceeding. And then another thing is, if you don’t probate a will within four years, there are ways to probate a will after that time.
You want to have your original will, because that is the will that is probated. It’s the original will. If you don’t have the original, well you can also probate a copy. It just means that there are more steps to that. So make sure you put your documents in a safe place but you also let people know where they are. I always advise my clients not to store them in a safety deposit box, unless whomever (your kids) knows where it is because if they can’t get access to it, they have to go before a judge to get it. I think I hit on a lot of the importance of the wills and what happens when you don’t have one.
Audience Questions:
Q1: Is it ever too early to start planning, or putting together your will?
A1: I would say it’s never too early. I do think, if someone comes to me and they don’t have real property and there are other mechanisms to ensure their property goes to whom they want, whether that is a payable on death bank account, payable on death IRA or 401k, anything that is going to transfer and have beneficiaries listed, make sure those are listed how they want them in the will.
I’m going back to that story about my client who died without a will. His life insurance was being paid to his estate. So not only did he have real property but we had to deal with the life insurance. If you have a beneficiary listed on those sort of things, you can’t avoid probate for some things. So, there have been a couple times where I’ve said you don’t need a will, but if anything changes, and you buy a house or something like that, then you definitely want a will.
Q2: With COVID happening right now, are there any extra steps or challenges when it comes to putting together a will?
A2: I think the biggest challenge is the requirement of having witenesses. I’ve had to recruit my neighbors and friends to come and witness the wills and I’ve really tried to group people together. However, we make sure you wear your mask, and then you cannot use online notaries. That was something that was passed by the Governor, I think, it was an executive order. But you cannot use an online notary for a will, so you have to have two witnesses and a notary public.
We really try to limit the time spent together, so a lot of it is done over the phone. The nice thing right now is people seem to be getting so familiar with Zoom, that a lot of the hearings are through Zoom. It used to be my clients would have to come in person, if they lost someone that they loved and that person lived in Houston. Right now you aren’t having to come in. So, it is saving people a trip.
Q3: What is the average cost of doing a simple will without a largest estate?
A3: I think the average cost of doing a will, I find that most attorneys.. there are other documents. So you want to have your powers of attorney, your directive, your HIPAA authorization. I think definitely under $500 for all those documents. There are attorneys that are affordable that will do it for half that, if you just wanted a will. And the nice thing is that when you go to an attorney, you get everything. A lot of times people come to me and they say, “Well, this is who I want to give everything to.”
Then I have to remind them: “What if that person pre-deceases you? Or what about this?” An attorney is able to ask you follow-up questions and then you make sure that your will will last forever. It’s very often that you don’t have to change your will. I mean I’ve had my will now since my daughter was born nine years ago, and I haven’t changed it. So that’s the nice thin and I’ve bought property and sold property so even though your assets might change, you may not even have to change your will for a long time.
Q4: What if the will was done in Louisiana? I know there’s a little bit different rules from Texas.
A4: Most likely, all wills will be good in every state. I’m going to use an example about California. My brother lives in California and in California, the cost of probating a will is based on the size of your estate, so there they do trusts a lot more to save that money. In Texas, it’s very simple and you don’t need that. There is a very good chance that a will done in Louisiana, I would assume that it would be valid in Texas, and vice versa, because there are laws that say this is good in every state. It’s more just the tax ramifications. In Texas, since we don’t have the estate tax, then it’s not a very expensive thing to probate.
For more insight on wills and probate like this, please contact Cynthia Fronterhouse at 713-467-1760.
