$1 Devise Leaves Room for Questions

Dear Mr. Premack: My father’s Will dates back to 1966, and in it he left everything to my mother and only $1 to my sister and me. He died about six months ago, and was preceded in death by our mother. No one else was named in the Will. Does the balance of his estate go to his grandchildren now? – LWV

When a person’s Will runs out of devisees, the uncommitted assets pass according to the laws of descent and distribution. Technically, your father died testate (he had a Will). The forceful statement he made is more negative than positive: do not give anything but a dollar to my two children. If he had followed that with a positive devise (give my estate to scholarships or give it to my nephew, etc) then there would be no question about his intent.

That opening indicates that he wrote the Will himself without a lawyer’s help. An experienced estate attorney will always ask for one or more contingency plans. If your wife dies first, who gets the estate? What if that person is also deceased? Backup plans are very useful.

Since he did not declare a positive devise of his estate, Texas law says that his children inherit. But the Will gives you only $1, leaving the rest of his estate uncommitted. The next legal heirs are his grandchildren, but here must be a legal proceeding to determine the identity of the proper heirs. Who are the grandchildren? How can we be sure no one has been left out? The court will require testimony about the family, and will even appoint an attorney to represent the “unknown” heirs.

His Will may be useful in a positive sense if it appointed an Executor who can take the lead. It may allow the Executor to act independently of court supervision once the identity of the heirs is established. The bottom line is this: be sure your Will has a plan and a contingency plan. If you leave $1 (or nothing) to your children, then be sure that you have specifically named other heirs to receive the balance of your estate. Then your estate won’t be burdened by unnecessary court intervention and higher legal expenses.

Paul Premack is a Certified Elder Law Attorney and a Five Star Wealth Manager (Texas Monthly Magazine 2009-2013) practicing estate planning and probate law in San Antonio.

Original Publication: San Antonio Express News, January 15, 2010

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