San Antonio Express-News
July 25, 2006

Wills with CPSA
-and-
Expired Notary Seal

copyright 2006, Paul Premack

Dear Mr. Premack: If a married couple has a Community Property Survivorship Agreement recorded with the county clerk, what becomes of or should be done with the couple’s Wills that were made 15 years earlier? – J.J.

A Community Property Survivorship Agreement (CPSA) is a contract that a married couple can create to pass ownership of their community property to the surviving spouse when the first one of them dies. There is no need to probate a CPSA after the first death, as title to the community property is automatically shifted to the survivor.

When a couple creates a CPSA, the terms of the agreement supersede any contradictory provision in the couple’s Wills. However, a couple typically makes Wills that say 1) we leave everything to each other if one of us dies, and 2) if both of us die, we leave everything to our children (or other devisees). Hence, the CPSA and the Will do not usually have any contradictory terms, and thus the CPSA achieves the same goal as the Will but does not have to be probated like the Will.

Note, however, that the CPSA has a “built in” limitation. It mimics only the first part of the Will (“we leave everything to each other”) and cannot, by law, go beyond that. As a consequence, when a couple makes a CPSA they must retain their Wills. After both spouses have died the Wills are still necessary to take care of the second goal (“we leave everything to our children”).

Further, a CPSA covers only community property. If either spouse owns any type of separate property – like a gift that was received from parents, or land that was inherited from an aunt – that separate property is not covered by the CPSA. The couple must either utilize other legal planning (for instance, converting the separate property into community property) or must utilize their Wills upon the first death. So keep those Wills in a safe place and be sure they are up to date.

Dear Mr. Premack: I was looking at some legal documents I signed about five years ago, including the deed from when I bought my house and my Will made a few months later. I am very worried because the notarization has expired. It says “Expires: April 6, 2003”. How do I get these documents updated or recertified so they will still be legally valid? – D.P.

When a person applies to become a Notary through the Texas Secretary of State’s office, they must pay a filing fee and post an insurance bond. After the Secretary of State approves the application and the bond, a Notary Commission is issued to that person, which allows him or her to administer oaths, acknowledge documents and do a few other notarial activities.

The bond has an expiration date, and so does the Notary Commission. If the person wants to continue to act as a notary beyond that expiration date, a renewal application must be submitted to the Secretary of State. That is the only impact of the expiration date on the notary seal found on your deed and your Will.

So long as the Notary performed the required task – administering the acknowledgement on the deed, taking your oath on your Will – before the Commission’s expiration date, the action continues to be valid despite passage of the expiration date. A Notary cannot do any notarizations after the expiration date of the Commission (as shown on the seal) until the Commission is renewed by the Secretary of State and a new date for the seal is issued.