Dear Mr. Premack: A savings account is established in a credit union for my three granddaughters. My will states that the money is in a trust. I do not see how my executor can even have the power to handle this account if she is not listed on my account. I am confused about this, in case of my death how does the bank handle this matter? – LCA
There are two possible answers. First: If the account “established… for my three granddaughters” is already in their names then your Executor and the trust in your Will have no power over the account. For instance, an account under the Uniform Transfers to Minors Act would be controlled by the custodian you selected when you opened the account. Second: If the account is in your name alone, and you have identified it in your Will as being for your three granddaughters, then when you die the account is part of your testamentary estate. The person you selected as your Executor must hire legal counsel to probate your Will. The court will issue to your Executor “letters testamentary” which will be presented to the bank. The bank will then allow the Executor to transfer the funds into an account administered by the Trustee selected in your Will.
Dear Mr. Premack: I understand that an out-of-state resident cannot serve as executor, but that he/she can appoint a local in-state agent to represent them. I was told an appointed agent could be another resident family member or the local attorney probating the will. My question is whether the agent is actually recognized by the court at the time that the will is filed/registered for probate, at the time of the hearing, or is that a separate filing process? – JS
Your information is correct: an out-of-state resident can appoint a local agent, and once the appointment is recorded with the Texas court, the non-resident may legally act as an Executor for a Texas probate. The appointment should be filed at the same time that the Will is filed for probate, but can be filed anytime up to the date of the hearing before the Judge. As long as it is on record when the Judge is ruling on the Will, it will be accepted by the Judge. The agent’s powers begin when the document is filed with the court, but the agent has no actual function to perform until the Judge has admitted the Will to probate at the hearing.
Dear Mr. Premack: In Texas does a will have to be recorded at the county courthouse? –JFL
During the lifetime of a person who has created a proper, legal Will, that Will is not recorded at the county courthouse. It should be held securely by that person. After that person has died, if there is the need for probate, then the Will is recorded as part of the probate proceeding. Not all Wills have to be probated; it depends on the assets and debts that a person leaves after death.
Dear Mr. Premack: Is there a legal way I can write checks on my mother’s account if she becomes unable? My father and only sibling are deceased; I am the only immediate family member. I am a recipient of state aid and cannot have my name on her account. – JML
There are two options. The best is to take your mother to a Certified Elder Law Attorney for preparation of a Durable Power of Attorney. Your mother can name you as her agent, and grant you authority to act on her behalf for a variety of legal and financial issues including handling banking on her behalf. You can then access her account as agent, which makes it clear that you have no ownership interest in the account. The second option is more limited: your mother can find out if the bank can establish a “convenience account” and add your name as a convenience signer. Under state law, it will be clear that you have no ownership interest in the convenience account.
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, December 2, 2013