Dear Mr. Premack: I previously had a will drawn up and I gave a copy to my beneficiary. Since then, I have decided to change my will by dropping that beneficiary and instead naming four charitable organizations as beneficiaries. What type of will would provide this, and how can I assure that the second will would be submitted upon my death (and that the first will is removed from consideration)? – JT
Peoples’ lives change. Under Texas law, there are several actions you can take to eliminate the first will. First, when your attorney makes your new (second) will with you, it must recite that all prior wills and codicils are revoked by this new will. Second, you should physically destroy the original of the first will. Do so in the presence of two credible witnesses and your attorney; people willing to testify that you destroyed it in their presence with intent to revoke it.
Third, you should inform the prior beneficiary that a new will has been made, and that person is no longer your beneficiary. When you gave the prior beneficiary a copy of the first will you created an expectation in that person’s mind: when you die, that person expects to inherit your estate. You must communicate your change of heart so you eliminate that expectation. At the same time, you should reclaim the copy which you gave that person, and you should destroy it along with all other copies of the first will.
After you die, the Executor you nominated in your second will should hire a qualified probate attorney to have the will admitted to probate in court. Be sure your Executor knows you had a prior will, knows you revoked it, and knows to fight any attempt by the prior beneficiary to use the first will. If you destroyed the original of the first will, the prior beneficiary could only have a copy which had been hidden from you. Fortunately, Texas law provides that if the original of the first will cannot be produced in court, the first will is presumed to have been revoked. The prior beneficiary would have to lie to the court if a copy of the first will was offered for probate, but that lie could be easily exposed by 1) the existence of your second will and 2) the testimony of the people who witnessed you destroy the first will with intent to revoke it.
The new second will should be written by an experienced Elder Law Attorney. When you desire to name charities as your beneficiaries, you should:
- Be specific about the identity of the charities. If possible, list the formal legal name of each charity (not just the name used for publicity purposes in the community). If possible, list each charity’s address and tax ID number in your will.
- Be specific about the purpose of your donation. Do you want the inheritance to be used for the charity’s general operations, or do you want it to fulfill a specific goal you favor? If the gift was, for instance, to a local university, you could require it be used for scholarships for mathematics students, or to help build new science labs, or for the library, or for research into a specific field. Nominate an Executor who is familiar with your wishes and will work with the charities to see your donations are used for your specified purposes.
- Be specific about the share to be received by each charity. You want four charities. Do they each get 25% of your estate, or is there one charity you favor over the others? Perhaps you prefer your favored charity to get 50% and the other three to split the other 50%. Whatever your decision, be sure your instructions are concrete.
- Keep the new will private, with only you and your Executor knowing its contents and location. Should your life change again and you once again desire to change your will, you won’t run into the same challenges.
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, November 23, 2013