Dear Mr. Premack: My husband made a handwritten
will, with two people signing as witnesses, but he didn't date the will.
The will simply left all his property to me, his wife. Now he has passed
away. Is this a valid will? Also, he left to me some books he had written.
Do they pass to me under the will, and if so, do I have copyrights to his
books? – JG
Let me begin by saying that a Will should always be
dated. Tremendous confusion can result from the lack of a date. What if
there is another Will, also clearly signed by the testator? Without a
date, it may be very difficult to prove which one was signed last (and
thus should be followed). Further, it is required that the person offering
the Will (you) be able to prove that the testator had testamentary
capacity when the Will was made, and if there is no date then such proof
may become very difficult to offer.
Still, Texas law does not
require that a handwritten Will bear a date as a requisite for being
admitted to probate. The case Kramer v. Crout, from all the way back in
1955, is very similar to your situation. A Mrs. Nolan signed a handwritten
Will with two witnesses. The Will did not have a date. The appeals court
ruled that a handwritten Will need not be dated to be valid, and that
despite the fact that Mrs. Nolan’s Will was also signed by witnesses it
qualified as a handwritten Will.
You’ll need an experienced
probate attorney and an understanding Judge, but with proper pleadings and
testimony the court should admit your husband’s Will to probate. The
process will be much more involved and expensive than what it would have
cost him to prepare a more proper Will with his lawyer. He did not do you
any favors when he saved a few dollars by handwriting his own Will – it
will cost many times what he saved in extra fees caused by the informality
of the Will he left.
After his Will is admitted to probate, its
instructions allow you to inherit his entire estate. That includes the
books that he authored, including the same copyright protection that he
may have acquired during his lifetime. If he never released the books, or
released them with a copyright notice attached, or registered them for
copyright with the US Copyright Office (a function of the Library of
Congress) then you acquired those same rights as his heir. Contact the
Copyright Office regarding a transfer of his rights into your name.
Dear Mr. Premack: In a previous article you stated that
the executor could not legally charge a fee for "receiving funds...which
were on hand or were held...in a financial institution or a brokerage
firm." Does that mean if there are 5000 shares of stock at a brokerage
firm that the executor could not collect a fee on transferring those to
the heirs? Would that also include sale of stock and cash distributed to
the heirs? NKS
The statute is clear. Section 241 of the Texas
Probate Code is the source for the quote that you included in your
question. Handling the shares of stock held at a brokerage firm does not
entitle the Executor to 5% of their value. Selling the stock and
distributing the funds does not entitle the Executor to 5% of the value.
However, there is one very significant exception. If the Will
itself authorizes a fee, then the terms of the Will apply instead of the
terms of the statute. Sometimes a Will states “pay my executor a
reasonable fee” or “pay my executor X percent of my gross estate” or
similar instructions. If the Will has specific fee instructions, then the
Executor’s handling of the stock may indeed entitle the Executor to a fee
which could in part be based on the value of that stock.