Foregoing counsel making a will is foolish not frugal

Sandra W. Reed
Sandra Reed

Donnie Trapp, the hypothetical testator from last week’s column made numerous mistakes drafting a holographic will without consulting an attorney. [A holographic will is one written solely in the testator’s own handwriting.] Donnie failed to name an executor to administer his estate. He also omitted the crucial wording that would have allowed his estate to be administered as an independent administration, free of the supervision of the probate court. Was there any way to remedy these omissions after Donnie died?

Can Donnie’s Mistakes Regarding Adminstration Be Remedied?

Is there a mechanism whereby Donnie’s failure in his will to name an executor and to provide for an independent administration of his estate can be remedied after he is deceased? The answer is “yes.”  Texas Estates Code §401.002 allows for a naming of an executor by agreement of all the beneficiaries. If one of the beneficiaries is a minor, the minor’s parents or guardian can agree on his or her behalf. If a beneficiary is an incapacitated person with a guardian, the guardian can agree. If the incapacitated person has no guardian, the court will likely appoint a guardian ad litem, who can agree on the incapacitated person’s behalf.

Application of TEC §401.002 can be applied, not only as with Donnie’s situation, but also when all the named executors have died, failed to qualify, declined to serve or are otherwise unavailable.

The difficulty in using this provision with Donnie’s scenario is that the primary beneficiaries are his wife and his daughter by a previous marriage. Because of their competing interests in the estate, the wife and daughter may find it difficult, if not impossible, to name a person to serve as executor that they both trust to be independent and fair to both of them. Without their agreement, the court will appoint an administrator who must seek permission of the court for his or her every move. Court supervised administration of the estate add substantial expense that would have been avoided had Donnie sought effective legal counsel in drafting his will.

Lesson Learned from Donnie’s Mistakes 

Even if circumstances make it necessary or preferable to execute a holographic will, it is still imperative to draft and sign the will with the assistance of qualified legal counsel. Unless circumstances exist which make a dependent administration necessary, an experienced attorney will make certain that language in the will names an executor who is allowed to proceed with the probate of the estate independent of court supervision. Independent administration makes it far less expensive to administer an estate in Texas than in most other states. It is foolish to forego this advantage by failing to seek counsel in the belief that money is being saved in doing so.     

Sandra W. Reed is an attorney with Katten & Benson, an Elder Law firm in Fort Worth. She lives and practices in beautiful Somervell County, near Chalk Mountain.