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San Antonio Probate, San Antonio Estate Planning, San Antonio Elder Law


San Antonio Express-News
April 6, 2001

Moving to Texas
Updating Advance Directives

© 1989-2004, Paul Premack

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Dear Mr. Premack: Getting my husband to make out a Will was like pulling teeth... it took 5 years to get him to do it. Now we have moved back to Texas from another state (Colorado). Will the Colorado Wills do, or do we need to make out new ones, which he refuses to do? E.B.

Although the legal concept behind Wills and probate is similar throughout the U.S., each state has unique procedures that should be honored. Ideally, you can convince your husband to replace the Colorado Wills with new Texas Wills that include these provisions:

1. Independent Administration. Texas law allows a Will’s maker to waive court supervision of the Executor. This makes the process faster, simpler and less expensive. The wording in your Texas Wills should be: "My Executor shall not be required to take any action in any Court in the administration of my estate other than the probating of this Will and the filing of any inventory, appraisement and list of claims required."

2. Waiver of Bond. Texas requires an Executor to post a bond to obtain letters testamentary, but a Will's maker can waive the bond. Bonding can be expensive, and it slows down the process. Most people choose a trustworthy person as Executor, so most people waive the bond. This waiver must be specifically stated in the Will.

3. Self-Proof. When you die, you can no longer tell the Judge that your Will is authentic. State law allows the Judge to accept a Will with a "self-proving affidavit" attached. The recites that all the formalities of creating the Will were followed, and it is signed by the Will maker and two witnesses, and is notarized.

If your husband refuses to update his Will, his legal Will from Colorado is also recognized as a legal Will in Texas. It just won't be as cost effective or a speedy to probate the Will after he dies.

Dear Mr. Premack: Is it okay for me to complete a form for Power of Attorney for Health Care and a Durable Power of Attorney for my husband and me? Should these be notarized and, if so, would a bank be likely to do it? Thanks. M.J.

You need these legal documents to cover some very important issues that could arise in the future. If you or your husband became disabled, these documents allow the well spouse to manage all financial and medical affairs without delay. They are truly essential legal documents, so you want them to be correct and enforceable.

You referred to a "durable power of attorney for health care," and may not be aware that Texas law was modified about 18 months ago. Under the new law, this document is called a "Medical Power of Attorney." If you and your husband complete the old-style forms, they will not be valid. For that reason, it is best for you to have them prepared by a knowledgeable attorney.

As to the formalities, a Durable Power of Attorney (for financial matters) must be notarized when its maker signs it. Spouses must do their own documents; you cannot complete one for your husband. Will your bank notarize it? Call them to ask, they will probably be happy to help. Medical Power of Attorney does not need to be notarized; instead, it must be signed in front of two witnesses (one of whom must meet strict statutory requirements). If you are concerned that attorney prepared documents will be too expensive, visit our legal forms store   for some good news.

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Disclaimer: This column answers a specific legal question offered by an individual in the South Texas area. The answer may or may not match your individual situation. Be careful not to treat this column as specific legal advice that meets your individual needs. It may give you a solid basis for discussion with your own attorney. Also, please be aware that laws change. You should consult with your personal attorney before you take any action on this or any legal issue.

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