Tuesday, June 2, 2009

Austin Lawyer Tip: The Most Important Words in Your Will

There are two fairly simple things that you can do before you die to help ease the financial burden of your passing on your family. One is to buy a good amount of life insurance. The other is to prepare a simple Will that uses the phrase, “I appoint Mary Smith as my independent executor, to serve without bond.” (Of course, replacing “Mary Smith” with your own choice.)

This very simple phrase will allow your family to probate your estate using the process known in Texas as an “independent administration,” and will further allow your executor to avoid the necessity of obtaining a substantial cash or surety bond before the court can legally recognize his or her authority to act on behalf of your estate. Both matters will help save a substantial amount of administrative costs and attorneys’ fees, which would otherwise be deducted from your estate before it is passed to your beneficiaries, while helping to expedite the transfer of title to your property from your estate to your beneficiaries. (See our related BLOG topic briefly describing an “independent administration.”)

If, for whatever reason, the deceased’s Will does not contain this phrase or words of similar effect, or if the deceased failed to prepare a Will, all is not lost. So long as all of the deceased’s heirs agree, the probate court can appoint an executor or administrator to act independently of the court and/or can waive the requirement for the executor or administrator to post a bond. Obviously, however, it will not always be possible to obtain the agreement of every single heir, perhaps due to family disagreements or difficulty in locating or communicating with an heir. For this reason, we recommend that you review your current Will to ensure that you are taking full advantage of this important phrase or, if you do not have a Will, that you consider preparing a simple Will in the near future.