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July 10, 2012

New laws passed address changes to Probate Code

Ask An Attorney

GREENVILLE — In this week’s installments of “Ask an Attorney” we will continue discussing changes to the law made during the last legislative session. Specifically, this article addresses three changes to the Probate Code. For more detailed answers, you should consult an attorney.

No Contest provisions in wills

Almost all wills drafted in Texas include a provision stating that a beneficiary who challenges the will automatically loses anything they would have received under the will. Challenges can be filed for several reasons, but most commonly a beneficiary will claim the will is defective because the testator lacked mental capacity to sign the will, or was improperly influenced by someone else named in the will.

The legislature has now made those no-contest provisions unenforceable as long as “probable cause” exists for commencing the contest, and the contest was brought and maintained in “good faith.” These are very low standards, and anyone filing a will contest will usually be able to meet them.

This new rule will almost certainly lead to some increase in probate litigation, which makes it doubly important that a will be drafted by a competent professional.

Free probate for those

killed in the line of duty

The estates of Texas-based military personnel, law enforcement officers, firefighters, and EMS personnel who have been killed in the line of duty have, in the past, been required to pay the same fees and costs as regular non-military probates.

Last legislative session, that rule was changed to allow line-of-duty death probates to become exempt from paying such fees. However, while the governor signed the bill into law last year, it technically will not become effective until January 1, 2014.

New procedure

for signing wills

In Texas, it has been necessary to prove to the probate court that a decedent actually signed a will by producing witnesses that can verify the signature. An easier method — which saved time and money for the executor — allows the executor to rely instead on a “self-proving affidavit” — usually the last page of the will, which includes the signatures of the decedent and the two witnesses who also signed the will. Basically, if a will was to be easy and inexpensive to probate, the law required the decedent and the witnesses to sign the will twice in two different locations.

This strange requirement was caused by years of changes to the Probate Code and appellate cases revolving around proof of signatures.

The last legislature changed that rule, and now allows a person making a will and the witnesses to sign only once, assuming it includes some specific language.

If you have an existing will, you don’t need to worry about the effect of this new rule — the law now allows “self-proving” probate of either type of will. Those of you who have handwritten wills, called “holographic” wills, also do not need to worry about the new rule. Holographic wills fall under other rules that are not affected by this rule change.

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