What Happens When You Die…With An Invalid Will?

This article is fourth in a series on what to consider and steps to take when planning for preservation of your estate and affairs — or those of a loved one. Prior articles in the series, include

"What Happens When You Die..."

1. With a Valid Will
2. With a Copy of a Will
3. With No Will

Sometimes, even the best-laid plans do not go as one expects. Say you had the time, foresight, and good fortune to draft your testamentary documents prior to your death; but then, when your Executor brings the Will to an attorney for probate, it is discovered that your Will is lacking some essential part, making it invalid.

In this article, we'll walk through the process of bringing an invalid Will to probate. While there are certainly unique complications for an invalid, incomplete, or incorrectly drafted Will, these are elements that an experienced probate attorney can resolve.

Incomplete Will / Incorrectly Drafted Will

A Will may be incomplete for a number of reasons. For one, a Decedent may have their Will drafted in a different state than the one where the Will is probated. Different states have different requirements for testamentary documents, and a Will that may be deemed "complete" in the state where it originated, may be lacking an essential component under Texas law. For this reason, it is always good practice when you move to another state to take your testamentary documents to a licensed attorney, so they can help clarify any potential gaps in the drafting.

Potential Risks With On-line Wills

Additionally, many folks decide to draft their own testamentary documents using online services. While some services may provide a legitimate form, it is extremely common that these form-drafted Wills lack necessary provisions or do not clearly instruct the testator in essential elements to satisfy a "complete" Will. Thus, the decedent is back at square one, with a Will that is not binding.

Finally, there may be some oversight in the creation of documents, wherein a necessary section (such as the identification of an independent executor or the stating of testamentary intent) is omitted in the drafting or editing process. This is highly uncommon when Wills are professionally prepared. However, Wills or testamentary documents prepared without the help of an attorney run into this problem more frequently, as the requirements of drafting can be difficult to work within for someone not experienced in the matter.

Court-Created Independent Administrations

For situations where a Will is incorrectly or incompletely drafted, but still shows testamentary intent, you can apply for a Court-Created Independent Administration (CCIA). In our last article, we talked about CIAAs in tandem with the Determinations of Heirship. The same theory is applicable here: since there is no provision in the Will requesting independent administration or the appointment of an independent executor, an applicant can instead request the court create one, to enable an easier distribution and close of the decedent's estate. As before (with a Determination of Heirship), a CIAA works best when heirs are known to each other and reasonably agreeable, as the application for court-created independent administration requires each heir to agree to the appointment of the independent executor. If heirs cannot agree, a CIAA may not be appropriate or even possible.

If the court approves the Application for Court-Created Independent Administration, the appointed executor must go through the typical probate process previously described:

• attend a prove-up hearing wherein the facts are recited;
• if approved, take an oath to faithfully distribute the estate; and
• act properly as the executor of decedent's estate.

This is the best-case scenario for an incomplete or incorrectly drafted Will, as the CIAA closely echoes a typical probate process.

Invalid Will

If a Will is missing an essential element, it may be ruled invalid by the Court. To be invalid, the Will may lack the following:

• Proof of a Testator's Testamentary Intent – every Will requires language that proves the Testator (the one signing the Will) knows and intends for the document to serve as his Last Will and Testament. If the Will does not have language indicating its purpose serving as a testamentary document, it cannot serve as a Will. However, if the Will still has testamentary language but lacks testamentary acknowledgement by the Testator, you may be able to argue that the Will is still functional before the Court.

and/or

• Signature by the Testator – a Will must contain the signed and dated signature of a Testator. Without his signature, or proof of signature on behalf of the Testator, the Will cannot be probated. Just like a contract, a Will must be accepted. If a Will is prepared and drafted, but never signed, it is as if there was no Will at all.

And, unfortunately, if a Will is found to be invalid, it is like having no Will at all. When a Decedent's Will is found to be invalid, the Court proceeds as if the Decedent died intestate.

Intestate Decedent / Intestacy

As a reminder from our last installment: when a person dies without a Will, they are said to have died "intestate." This is not uncommon, and specific provisions are made for intestacy in the Texas Estates Code. The Texas Estates Code is our guide for all probate matters, but it is especially important to follow the Code closely in more complicated probates, such as when a person dies intestate.

In Review: Determination of Heirship, ad Litems, and Genealogy Experts

If a Will is found to be invalid, it is essentially thrown out by the Court. Thus, an applicant must start from scratch. This means filing an Application for Determination of Heirship to identify all the living heirs of the decedent. Since the Court does not recognize the decedent's Will, the Court must make the division of property itself according to the letter of the law. Unfortunately, that means you, as the applicant, must prove up the case.

To assist with the investigation and identification of heirs, the court will appoint an Attorney ad Litem, an attorney selected randomly by the court from a roster of attorneys who have been trained and certified for the job. The Attorney ad Litem will communicate with the decedent's living family members, check vital records (such as birth, death, marriage, and adoption records) for information on the decedent and his family history, and essentially find or ensure the nonexistence of any additional heirs to decedent's estate. The Will, though invalid, may assist with this process.

Sometimes, however, a family tree may be bigger than one ad Litem can handle. In cases where a decedent has had numerous children (by one or numerous partners) and those children have gone on to have numerous children of their own, calling in an expert in genealogy may be necessary. This is more likely if the invalid Will does not identify all heirs.

Attorney ad Litems (and the genealogy expert, if retained) are expected to testify as to their findings before the court as part of the prove-up process for decedent's estate.

Proving Up Decedent's Estate: Testimony and Affidavits of Heirship

To recap, the determination of heirship process is as follows:

• first, the application and motion for Attorney ad Litem is filed;
• once the application and motion are received, the court will order the appointment of an Attorney ad Litem;
• then the ad Litem begins an investigation.

Meanwhile, the probate attorneys will prepare the other fact witnesses to the case. To prove up an intestate decedent's estate, you must have two witnesses who are not related to the decedent and who have no financial interest in decedent's estate. These two witnesses must have personal knowledge of the decedent's life and family history, so as to testify before the court about decedent's heirs. The attorney ad litem and the genealogy expert (if one was necessary) will also testify before the court about their findings.

Once the court has heard all the necessary testimony, it will make a ruling identifying the heirs of the decedent's estate. Additionally, the court will rule on the distribution of property to each heir, per the rules in the Texas Estates Code.

Updating Your Will — An Ounce of Prevention

Experienced attorneys, such as the Estate Planning, Wills, and Probate team at Cowles Thompson, are able to assist with any complication you might face in your probate process. However, you can save your family time, stress, and money by ensuring your Will is updated after major life events (such as moving between states), and seeking a professional's help in the process. We recommend reviewing and updating your Will and Testamentary documents regularly. If the task is too big and you're at a loss as to where to start, reach out. We are happy to help set you up for probate success.