This column first appeared in the San Antonio Express News on April 13, 2018.
Dear Mr. Premack: My mother recently had her Will drawn up by an attorney. She gave him the name she has used for years, which is on her social security card, on her marriage license, on her bank accounts, and on her house title. Now that name is on her Will. I was at her house and found a copy of her birth certificate, and it lists a different first name (her birth certificate says “Eleanor Bonnie” as her first and middle names, but she has only used Bonnie forever. Do we have to re-make her Will to match her birth name? – MEM
Names are a fascinating study. We use nicknames, middle names, and pet names only our closest family may know. But legally, there needs to be some consistency. The name a person is given at birth (as shown on the birth certificate) is that person’s official name unless 1) that person gets married, or 2) that person changes their name in court following proper legal procedures. Even after a formal name change, proper documentation needs to be provided to financial institutions, employers, Social Security, the state driver’s license bureau, etc. before they will change their records.
Your mother’s name was Eleanor Bonnie at birth, but she has only used Bonnie for years. She even used Bonnie when she got married. That is the key in her situation. A marriage license is a legally recognized name change. If she is listed on the marriage license as Bonnie, then it is legal for her to use the name Bonnie.
In fact, most people and institutions likely have no idea that her first name was ever Eleanor. When she eventually dies and her Will goes before a Judge for probate, the name on her Will is reported to the court. The court verifies the name against her death certificate, but also collects the last three digits of her Social Security number and of her Driver’s License number. Since those documents (if they had to be used as proof) also show the name Bonnie, and her assets are owned under the name Bonnie, there should be no issue. She does not need to re-make her Will.
It is good practice, however, to list any variations on a name in the Will. She (and you) may sleep better if her Will said “This is the Will of Bonnie [Smith], who is formerly known as Eleanor Bonnie [Smith]”. If she is really concerned, it is also legal to do a formal name change before the District Court in the county of her residence. A formal name change should not be necessary, but again, if it makes her sleep better then it may be a worthwhile endeavor.
Dear Mr. Premack: My mother-in-law recently moved into a nursing home and is applying for Medicaid. All she has is her house, which is under a Lady Bird Deed to protect it from Medicaid Estate Recovery. While she is in the nursing home, all of her income is used to pay for the nursing home. So how does she pay to maintain the house and pay the property taxes? Do we sell the house? Do we rent the house? – EW
Texas Medicaid regulations do not make allowance for maintenance or taxes on the house. It is a conundrum, since the house will be at risk unless it is maintained. If the house is sold, the net proceeds will be a countable resource which will throw her off Medicaid until the money is spent. If the house is rented, the gross income can be used to pay maintenance and taxes, but the net income counts against her for Medicaid purposes, and may force her to need a Miller Trust. (Also, rental of the house can only be short term because it must be available for her occupancy should she recover from her illness.) At the least, she can apply for a property tax deferral via the Appraisal District, but the taxes plus interest will be due after she dies. She or her properly appointed Agent should meet with a certified Elder Law attorney to explore the pros- and cons- of each option.
Paul Premack is a Certified Elder Law Attorney with offices in San Antonio and Seattle, handling Wills and Trusts, Probate, and Business Entity issues. View past legal columns or submit free questions on legal issues via www.TexasEstateandProbate.com or www.Premack.com.