Dear Mr. Premack: My parents updated their wills and living trust in another state several years before my father died. My mother then moved to Texas, where she will likely reside until her death. My sister and I are their only children. I learned from a third party that I am not mentioned in the wills or trust. I am not estranged from either my mother or sister and my mother speaks openly of intending we both share her estate equally. Most likely the omission was due to my mother’s embarrassment in their small town and disapproval about my gender reassignment which had commenced three years prior. The attorney who wrote their plan said I may have a valid claim as a pretermitted heir in any event but after reading some of your columns I’m not so sure. Must there be a probate in Texas when she dies? Other than asking my mother to change her will and trust, is there any way to clarify my rights in the event of a contest over heirship following her death? – JP
Your mother and father made a choice, no matter what their motive, to leave you out of their estate plan. Their trust and wills were written while they lived in another state. Your father died in that other state, and any administration of his estate would have been handled under that state’s law. It is very likely that there was no probate, and that your mother simply continues as trustee and beneficiary of their living trust.
When she became a Texas resident, she subjected herself to the laws of Texas. In that respect, she should have the trust and her will reviewed by a Texas lawyer. She may need to revise the trust to accommodate Texas laws, like the provisions in the Tax Code which allow her to continue to receive her homestead tax exemption even though her home is owned by the trust (if the trust does not say the right things, she could lose her exemption which would cause her taxes to rise).
One goal of having a living trust is avoiding probate. To do so, the trust must contain the correct provisions and must be owner of your mother’s assets. Any assets left out of the trust can trigger probate, so when she meets with the Texas lawyer she should review whether her current setup will in fact avoid probate.
She may also need to completely replace her Will and various other documents (like any durable power of attorney or medical directives which she executed in the other state). Those legal documents do not travel well across state lines, as each state has its own statutory requirements for their efficiency and validity.
Regarding your rights: since you are not estranged from your mother, your safest approach is to speak with her frankly about your concerns. She might tell you that she does not want to talk about it, may tell you that she is sticking with her prior plan, or may agree that changes are in order. Involve your sister so that she is not surprised or feels that she was ambushed. Then abide by your mother’s decisions.
The attorney who told you about the rights of pretermitted heirs was not a Texas lawyer. In Texas, a pretermitted heir is a natural or adopted child who was not named in the will solely because that heir was born after the date the will was made. Clearly, your parents’ wills were made years after your birth. Thus, you are not a pretermitted heir and you have no inherent right to inherit from them when they have chosen to omit you from their estate plan.
Your gender reassignment has no legal bearing on your right to inherit under Texas law. In 1999 the Texas Court of Appeals ruled (in the Littleton option written by then Justice Phil Hardberger) that gender reassignment may change your physical appearance but that it does not legally change your gender. Texas law uses a person’s gender at birth to determine gender for the entire lifetime. Your mother’s decision to omit you as an heir (due as you believe to her embarrassment) is the only legal issue. If she changes her mind and legally amends her trust and her will then you will be included as an heir. Your gender plays no legal role.
Paul Premack is a Certified Elder Law Attorney practicing estate planning and probate law in San Antonio.
Original Publication: San Antonio Express News, May 13, 2011