Who pays the bills in your house?  If your house is like most, there is probably one person who handles most of the financial matters. Would you or your spouse be prepared to assume the role of managing the household finances if something happened to the other spouse?  Too often, clients have gone through the process of ensuring their estate plan is in order, just to realize that, when one passes away, the other does not have the information they need to pick up where the other left off.

Consider the checklist below when organizing your household finances.

1. Organize your financial documents and personal information. Leaving behind an organized filing system including everything from account information to contact numbers will help your spouse or children when they need to sort through that information. Imagine the frustration of having to dig through scattered envelopes and stacks of papers to find account information after the recent loss of a loved one. Make sure your spouse knows the location of where personal information is kept, including Wills, Trust documents, insurance information, social security cards, birth certificates, medical records, tax return information, etc. Write the names and contact information of family members, friends, and other emergency contacts. Include the contact information for the professionals you use, such as your doctors, lawyers, attorneys, CPAs, financial planners, insurance agents, etc.

2. Make a list of all of your assets and liabilities. Your assets should include bank accounts, brokerage accounts, safety deposit boxes, properties, etc. Your liabilities should include credit cards, mortgages, car payments, etc.  For each item, list the location, the names on the accounts, the account numbers, and any website login information including usernames, passwords, and security questions. If you were to pass away, this would help your spouse identify what and where all of your assets are.

3. Identify all sources of income and expenses.  This will give your spouse a checklist to follow so they can understand what inflows to expect as well as what bills need to be paid. Indicate whether you pay each bill by paper or online.  If online, be sure to include the usernames, passwords, and security information to access the websites.

4. Document any other miscellaneous information that your spouse might need to run the household.  This part of the planning is not always financial, but still very important.  For example, does your spouse know where you keep the spare keys to your house, or any keys to gates, sheds, lock boxes, or safes?  Make an effort while you are going through your daily routine to think of things that are obvious to you, but may not be as obvious to your spouse or children. Include a list of passwords for social media and other online accounts, passwords for tablets and other electronic devices, locations of flash drives or CDs with old family pictures, and even a basic household maintenance checklist.

Sometimes it is the intimate details of a family’s situation that can be hardest to plan for, but detailed planning will result in the peace of mind that the spouse and family will be taken care of in the event of death or incapacitation.  Sit down with a trusted attorney if you need assistance with planning for these and other life events.

The post COMMUNICATE DETAILS appeared first on Moak & Moak, P.C. -Attorneys At Law.

To start, let’s basic difference between a Will and a Trust in simple terms, so you can get a basic idea of what’s out there.

Wills executed in Texas can be relatively easy to probate. If the will contains proper language appointing an “independent executor” and contains “self-proving affidavits” from 2 witnesses over the age of 14, then your estate should be in an out of probate in a jiffy. If you do not have a will, or it does not appoint an independent executor, or is not self-proving, in that event THE LAWYERS WILL GET ALL THE MONEY.

An independent executor need only make application to the court for admission of the Will to probate, and do an inventory and appraisement. If no debts or taxes are due, the estate may then be distributed to the devisees (devisee is a fancy lawyer word for “heir”). Technically heirs and devisees are different, but you will have to pay me to explain all that.   Another term is beneficiary (another fancy lawyer word for who benefits from the Will).  The benefit to not having debt is that only the beneficiaries see the inventory.

Thus, an estate driven by a Will does not require a great deal of management, allows the individual to maintain ownership of assets until death, can be simple, private and relatively inexpensive.

Generally, a trust is a legal instrument that transfers  title to designated property from the owner, called the settlor, donor or grantor (settlor), to a trustee, who holds the property for the beneficiaries of the trust.  The settlor can also serve as the trustee, thereby enhancing control over the trust during the life of the settlor.  In such a case, a successor trustee is usually named in case the grantor dies or is incapacitated.  Depending on the size or complexity of

the trust, the trustee, or cotrustee, might

be an institution, so as to bring more expertise to the position.

When utilizing a trust for your estate plan there are several considerations.  Once created, all property belonging to the settlor must be transferred into the trust.  This includes real estate, financial accounts, vehicles and any other property.  Over time, as property is sold and/or acquired, the trust must be utilized and the property placed in the trust name.

If you are seeking tax relief from the trust, then you will not be able to act as the trustee.  Additionally, you may not be able to amend the trust.  Many folks are not comfortable giving up control of their assets.

Another consideration are the homestead, disability or over 65 exemptions effecting your property.  In order to maintain these exemptions, the trust will need to contain specific language.  It may not be possible to maintain all these exemptions.

Trust are popular in many states because of different property and tax law.  However, what works in one state, may not be the best in your state (Texas).

There are many different types of trust and one might be appropriate in your plan, but there is lots of misconceptions about trust.

If you considering an estate plan, you should sit down with an attorney experienced in estate planning to assist you in making sure which estate plan is correct for your needs.  We have the experience and would be glad to help you in this regard.

The post Will or Trust? appeared first on Moak & Moak, P.C. -Attorneys At Law.

The post What is a Will? appeared first on Moak & Moak, P.C. -Attorneys At Law.

I am not talking about the diet you vowed to follow in your New Year’s Resolution, or trying to look good in that new bathing suit this summer; what I am talking about is your annual checkup—taking stock of your health with your primary care physician and making sure you are both on the same page with your instructions for health care and your advanced healthcare directive or living will.

When clients come into our office for an estate plan, we ensure that their healthcare instructions are completed as well.  But the job doesn’t end when the document is signed. We tell our clients their health care providers need to be aware of their wishes as well. The best way to ensure that they know and understand your wishes is to take a copy of your advanced healthcare directive or living will with you to your next check up and talk to your physician about it, then ask them to keep the copy on file.

A rule of thumb with healthcare wishes is to give a copy of your Medical Power of Attorney and your Directive to Physicians and Family to each of your primary care physicians, give copies to each of the healthcare agents you’ve nominated, AND keep a copy or two on file to take with you if you ever need to go to the hospital. Of course, keep the signed original in a safe place with the rest of your estate planning documents.

If you have a question regarding Elder Law, Estate Planning, Living Trusts or Probate in the Huntsville area, please contact us at 936-295-6394 or visit our website.  Call today and we will connect you with an experienced Elder Law and Probate Attorney.  We can schedule you a face to face appointment to discuss your circumstances. If you have questions or are considering any aspect of your estate plan, probate, or your health care directives, etc. we can help!  We look forward to hearing from you and assisting you with any and all elder law and estate planning needs.

The post MAKE SURE YOU TALK TO YOUR DOCTOR appeared first on Moak & Moak, P.C. -Attorneys At Law.

Pet trusts have become increasingly popular in recent years as older pet owners are looking for ways to ensure their pets will be well cared for when they’re no longer able to do the caring. Therefore, this week’s column deals with things you should know when considering your pets in estate planning.

Most wills deal with providing for loved ones upon the death of the person writing the will. However, “loved ones” usually is limited to spouses, children and other relatives. If your house is like mine, your family also includes your pets. We talk to them like family, feed them and care for them like family, and, when a pet dies, we grieve for them like family. However, when planning for the future we often overlook our furry friends.

Should an unexpected illness, accident or death occur, it is a good idea to have in mind a family friend or neighbor who is familiar with your pet that can act as an emergency caretaker. Carrying an “alert card” in your wallet that lists the names and phone numbers of your emergency pet caretakers would be a good idea, also. Post removable “in case of emergency” signs on your doors or windows telling how many and what type of pets you have. These notices will alert emergency response personnel during a fire or other home emergency.

The best way to make sure your wishes are fulfilled is to make formal arrangements that specifically cover the care of your pet. It is not enough that long ago a friend verbally promised to take care of your pet.

A Will takes effect only upon death, and may not be probated and formally recognized by a court for days or even weeks. This does not mean you should not include a provision in your Will for your pet. It just means you should explore creating additional documents that compensate for the Will’s limitations.

Unlike a Will, a trust can provide for your pet immediately and can apply not only if you die, but also if you become ill or incapacitated. When you create a trust for your pet, you set aside money to be used for its care and you specify a trustee to control the funds. However, trusts can be expensive and complicated.

A power of attorney may be more suited to your situation. Powers of attorney authorize someone else to conduct some or all of your affairs for you while you are alive. Powers of attorney have become standard planning devices. Such documents can be written to take effect after you become incapacitated. They are simpler than trusts and do not create a legal entity that needs to be maintained by formal means. Provisions can be inserted in powers of attorney authorizing your attorney-in-fact (i.e., the person designated to handle your affairs) to take care of your pets, expend money to do so, and even to place your pets with permanent caretakers if necessary.

I will not mention any names, but I have been asked in the past if a person could request a pet be euthanized after their death. A similar clause would prevent the remarriage of the surviving spouse. Thank goodness these of type provisions would probably be ruled invalid.

I would also suggest you consider The Stevenson Companion Animal Life-Care Center at Texas A & M University (The Stevenson Center). Established in 1993, the Center provides a way your beloved pets can be cared for when you are no longer able. You may find more about the Center at http://vetmed.tamu.edu/stevenson-center. Reveille IX, the most recent retired Aggie Mascot, is a resident of The Stevenson Center, so if you visit, you might just meet some Aggie royalty.

While there is a plethora of information on the internet in this area, I caution you to be careful. What you find on the internet may not be valid under Texas law. Therefore, before making formal arrangements to provide for the long-term care of your pet, seek help from an attorney licensed to practice law in Texas, who can guide you in preparing the legal documents necessary to protect your interests and those of your pet.

Sam A. Moak is an attorney with the Huntsville law firm of Moak & Moak, P.C. He is licensed to practice in all fields of law by the Supreme Court of Texas, is a Member of the State Bar College, and is a member of the Real Estate, Probate and Trust Law Section of the State Bar of Texas. www.moakandmoak.com

The post Pets ARE Family appeared first on Moak & Moak, P.C. -Attorneys At Law.

The Texas Constitution Article I, §26 adopts the common law version of the Rule Against Perpetuities.  In 2021, the Texas Legislature made extensive revisions to Texas Property Code §112.036 that may extend the time period to 300 years from the effective date of a trust.  This was done to permit the creation of dynasty trusts in Texas.  Previously, the rule had stated property must transfer or vest within 21 years after some life in being at the time the interest was created, plus a period of gestation. 

The effective date of a trust is the date it becomes irrevocable, meaning the date the person setting up the trust dies or declares the trust is irrevocable.  This date is important because it is the date the interest in property is created and the time period subject to the Rule Against Perpetuities begins.  Thus, if grandfather’s trust states the property is to not be sold, but held in trust for grandson during grandson’s life, the maximum duration of the trust was the grandson’s life, plus 21 years.  If grandson had not been born, but was in gestation, then the period could be the grandson’s life, plus 21 years and an additional 9 months (gestation).  Now if that isn’t a complicated enough set of terms, imagine that the Texas Property Code now says that period maybe 300 years.  Article I, §26 of the Texas Constitution hasn’t changed.  So, the time period might be 300 years or the person’s lifetime plus 21 years.  

Head swimming yet?

Dynasty trust isan irrevocable trust that lets people keep wealth in the family for multiple generations.  Families can reduce the tax burden on successive generations of beneficiaries.  Now mind you, the current estate tax exempts the first 22 million dollars of a couple’s assets from estate tax.  So unless you are a professional sports athlete, politician or super rich, then this may not be an issue. 

It will be interesting to watch the legal battles over the issue of the Rule Against Perpetuities versus the Texas Property Code, but lawyers have certainly found a way to insure they will have work.  Not only will they have work, they will certainly be able to charge a high fee to their super rich clients. 

If you are thinking of leaving property to your family and want to protect the value of that property from taxation or make it a simple process to transfer those assets, you should seek the assistance of an attorney with experience in estate planning.  A little spent now, will save money and headaches for your family later.  If you are a professional athlete, politician or super rich, I would be glad to set up a retainer.  

Sam A. Moak is an attorney with the Huntsville law firm of Moak & Moak, P.C.  He is licensed to practice in all fields of law by the Supreme Court of Texas, is a Member of the State Bar College, and is a member of the Real Estate, Probate and Trust Law Section of the State Bar of Texas.  www.moakandmoak.com

The post Rule Against Perpetuities appeared first on Moak & Moak, P.C. -Attorneys At Law.

We Americans relish our freedoms. We want to live how we like, spend our hard-earned money on what we want and carry automatic rifles if we so desire. And we resist when the government tries to interfere with our lives.  However, less than half of all Americans have even the most basic estate planning documents.  As a result, they voluntarily give up their freedom to decide what will happen to their assets when they die.

The law gives you the freedom to decide how and to whom your assets are distributed when you die by making a Will.  But if you die without a Will, your assets will be distributed according to a statutory formula that doesn’t take into account your wishes and unique circumstances.

Below is a summary of the way the assets of those who die without a Will in Texas are distributed.

Distribution For Single People With No Children

If a you are single and die without a Will in Texas, the Texas Probate Code dictates that your assets will be distributed as follows:

• Your estate will pass equally to your parents, if both are living.  If only one parent is alive, and you don’t have any brothers or sisters, then your entire estate will pass to your surviving parent.
• However, if you do have siblings, or descendants of siblings (nieces and nephews), then your surviving parent would receive only half of the estate, and the remaining one half would be divided among your siblings or their descendants.
• All of your estate would pass to your siblings or their descendants if you have no surviving parents.
• If you have no surviving descendants, parents, siblings, or descendants of siblings, then the estate is divided into two halves, with one half passing to relatives on your mother’s side of the family, and the other one half passing to relatives on your father’s side.
• If one side of the family has completely died out, the entire estate would pass to the surviving side of the family.
• On rare occasions, when an unmarried person dies without any surviving heir, his estate will pass to the State of Texas.

Perhaps you have a close friend who you would have wanted to share in your estate. That would not be possible without a Will.

Distribution for Those Who Die Unmarried with Children

If you are single and have children, then all your property will pass to your descendants. If your descendants are of the same degree of relationship, (meaning, for example, that all are your children or all are your grandchildren), then the assets will be divided equally between them. 

However, if your descendants are of different degrees of relationship, (meaning some of your children predecease you, leaving children or grandchildren of their own), then the younger generation would only be entitled only to the share the older generation would have received had he or she survived.

Distribution for Those Who Die While Married

Many people may assume that if they are married and die without a Will in Texas, their surviving spouse will inherit their entire estate. This is not always the case. How their property is divided depends on whether it is characterized as community property or separate property.

Community Property

All property acquired during a marriage is presumed to be community property. Under Texas laws, if you are married and are survived by a spouse and children, then:

• Your surviving spouse will inherit all your community property if all your children are also the children of your surviving spouse;
• Otherwise, all your one-half interest in the community estate will pass to your children, with your spouse keeping only his or her one-half interest.
• If you do not have any children, then your surviving spouse will inherit all of your community property.

Separate Property

If your property is characterized as separate property, the distribution scheme is different:

• If you are survived a spouse and children, your surviving spouse is entitled to one third of your separate personal property and only a life estate (the right to use the property until his or her death) in one-third of your separate real property. The rest would be inherited outright by the children of the deceased spouse.
• If you are married but have no children or other descendants, your surviving spouse would be entitled to all the separate personal property. But if you have surviving parents and siblings, the surviving spouse would only be entitled to one-half of the separate real property with the other half passing to the parents, siblings or descendants of siblings in a manner set forth by the statutes.

If you want the freedom to decide how and to whom your property will be distributed when you die, you need a Will.  Additionally, the process for proving who your family (heirs) are without a Will is time consuming, difficult and generally much more expensive than if you had a Will.  

The post Probate Without a Will in Texas appeared first on Moak & Moak, P.C. -Attorneys At Law.

Just this past week our community lost another young soul. Please remember to always look out for motorcyclist and if you are a rider, you must be ever vigilant. Death is not something exclusive to the elderly or ill. The reality is, less than half of all Americans have even the most basic estate planning documents. As a result, they voluntarily give up their freedom to decide what will happen to their assets when they die.

The law gives you the freedom to decide how and to whom your assets are distributed when you die by making a Will. But if you die without a Will, your assets will be distributed according to a statutory formula that doesn’t take into account your wishes and unique circumstances.

Below is a summary of the way the assets of those who die without a Will in Texas are distributed. Please understand this is not an exhaustive list. It does not take into consideration claims of common law marriage, birth of a child after a Will, handwritten documents validity as testamentary instruments and a host of other issues. 

Distribution For Single People With No Children

If you are single and die without a Will in Texas, the Texas Probate Code dictates that your assets will be distributed as follows:

Your estate will pass equally to your parents, if both are living. If only one parent is alive, and you don’t have any brothers or sisters, then your entire estate will pass to your surviving parent.

However, if you do have siblings, or descendants of siblings (nieces and nephews), then your surviving parent would receive only half of the estate, and the remaining one half would be divided among your siblings or their descendants.

All of your estate would pass to your siblings or their descendants if you have no surviving parents.

If you have no surviving descendants, parents, siblings, or descendants of siblings, then the estate is divided into two halves, with one half passing to relatives on your mother’s side of the family, and the other one half passing to relatives on your father’s side.

If one side of the family has completely died out, the entire estate would pass to the surviving side of the family.

On rare occasions, when an unmarried person dies without any surviving heir, his estate will pass to the State of Texas.

Perhaps you have a close friend who you would have wanted to share in your estate. That would not be possible without a Will.

Distribution for Those Who Die Unmarried with Children

If you are single and have children, then all your property will pass to your descendants. If your descendants are of the same degree of relationship, (meaning, for example, that all are your children or all are your grandchildren), then the assets will be divided equally between them.

However, if your descendants are of different degrees of relationship, (meaning some of your children predecease you, leaving children or grandchildren of their own), then the younger generation would only be entitled only to the share the older generation would have received had he or she survived. Meaning that if you have two siblings and one predeceases you, the children of that deceased sibling divide that share.

Distribution for Those Who Die While Married

Many people may assume that if they are married and die without a Will in Texas, their surviving spouse will inherit their entire estate. This is not always the case. How their property is divided depends on whether it is characterized as community property or separate property.

Community Property

All property acquired during a marriage is presumed to be community property. Under Texas laws, if you are married and are survived by a spouse and children, then:

Your surviving spouse will inherit all your community property if all your children are also the children of your surviving spouse;

Otherwise, all your one-half interest in the community estate will pass to your children, with your spouse keeping only his or her one-half interest.

If you do not have any children, then your surviving spouse will inherit all of your community property.

Separate Property

If your property is characterized as separate property, the distribution scheme is different:

If you are survived a spouse and children, your surviving spouse is entitled to one third of your separate personal property and only a life estate (the right to use the property until his or her death) in one-third of your separate real property. The rest would be inherited outright by the children of the deceased spouse.

If you are married but have no children or other descendants, your surviving spouse would be entitled to all the separate personal property. But if you have surviving parents and siblings, the surviving spouse would only be entitled to one-half of the separate real property with the other half passing to the parents, siblings or descendants of siblings in a manner set forth by the statutes.

If you want the freedom to decide how and to whom your property will be distributed when you die, you need a Will. Additionally, the process for proving who your family (heirs) are without a Will is time consuming, difficult and generally much more expensive than if you had a Will. 

The post Dying Young Without a Will appeared first on Moak & Moak, P.C. -Attorneys At Law.

The information in this column is not intended as legal advice but to provide a general understanding of the law. Any readers with a legal problem, including those whose questions are addressed here, should consult an attorney for advice on their particular circumstances.

One of the most important functions a person can perform for their loved one is to act as their executor. This is an honor and privilege that is bestowed upon someone because of the person’s trust, faith and confidence in them.

If someone close to you asked you to be the executor, you should feel honored, but at the same time you may be quite unsure of your responsibilities. What do you need to do, when does it need to be done and how much time will it take?

One of the main components of a Will is the portion where the person making the Will (the Testator) names the Executor. Who and what is an Executor and what are some of the considerations you should take when selecting one is the topic this week. 

The Executor is the person who carries out the instructions in your Will and who pays the estate’s debts and taxes. Now I do not mean the Executor pays these out of his or her pocket, but instead makes sure these items are paid with the proceeds of the estate. Because the Executor will have broad responsibilities and powers it is important to choose a competent and trustworthy Executor.

An Executor can be any person or institution (such as a bank or trust company) you choose. Here are some tips on what you should consider when choosing an Executor:

•Are they experienced and competent in business matters?

•Are they familiar with your business, finances and property?

•Are they willing and able to act as your Executor?

•Are they able to spend the time necessary to perform the duties of an Executor?

•Are they able to work with the estate’s attorney and accountant?

•Are they able to provide for the continuation of your business?

Another important item to consider when selecting an Executor is what would occur if they are unable to act as Executor when the need arises? It is best to have an alternate Executor and, if possible, a third. The reason for this is simple. If you do not select an alternate, then it is up to the court to do so. The person the court selects may not be someone you would want. 

The Executor’s responsibilities include the following:

•The first step is the probate of the Will. In order to do that, an application must be filed with the Probate Court located in the jurisdiction in which the decedent was domiciled at the time of his or her death;

•Following the probate hearing, the County Clerk will issue Letters Testamentary to the individual or institution designated in the Will as the Executor (after the Executor has signed an Oath of Office);

•Giving a general notice to unsecured creditors within 30 days of his or her appointment;

•Within 60 days of the Executor’s appointment, giving notice by certified or registered mail to each secured creditor whose debt is secured by a lien on Texas real property or personal property owned by the estate

•Collecting the following documents to establish rights for insurance, pensions, Social Security, and ownership: Will, birth and marriage certificates, Social Security number, citizenship papers, insurance policies (life, health, accident, and property), bank books and statements, deeds, leases, care title/registration, income tax returns, veterans discharge certificates, disability claims, unpaid bills, property tax bills, and credit card information;

•Notify the post office, relatives, friends, employer, insurance agents (life, health, and accident), religious, fraternal, civic, and veterans organizations, and unions of your death;

•Collecting, preserving, and appraising the personal property of the estate;

•Securing the residence and reviewing the insurance coverage.

•Preparing an Inventory, Appraisement and List of Claim’s for your estate. The Inventory, 

Appraisement, and List of Claims must list all the decedent’s probate assets and all claims that are owed by third persons to the estate. (Note that the term “claims” in this context refers not to the decedent’s debts or claims the decedent owes to others, but only to amounts that other people owe to the decedent.)

•Paying all valid debts including funeral costs, fees and expenses incurred in administration, medical bills, and utilities from your estate account;

•Applying for Social Security benefits and employer identification number;

•Determine whether your estate has any tax liability and making sure your final tax return is filed;

•Distributing the money and property in accordance with the Will.

As you can see, the Executor plays a very important role in the administration of the Testator’s estate. Usually the attorney handling the probate will assist the Executor with the above duties, but it still requires someone who is familiar with your affairs so that all of the above information can be collected and addressed. 

While you can elect to pay the Executor compensation for their time and effort, this is not always the case. Thus, make sure you have talked over your decision with the person you select to make sure they are up to the task. And as always, consult with an attorney when making this choice.

Sam A. Moak is an attorney with the Huntsville law firm of Moak & Moak, P.C. He is licensed to practice in all fields of law by the Supreme Court of Texas, is a Member of the State Bar College, and is a member of the Real Estate, Probate and Trust Law Section of the State Bar of Texas. www.moakandmoak.com

The post DUTIES OF AN EXECUTOR appeared first on Moak & Moak, P.C. -Attorneys At Law.

The following is a rendition of the Herman Oberwies Will:
“I am writing of my will mineself that dam lawyir want he should have too much money, he ask too many answers about the family. First thing I want I don’t want mine brother Oscar get a G D thing I got. He is a mumser he done me out of forty dollars fourteen years since.

I want it that mine sister hilda get the North Sixtie Akers of at where I am homing it now, I bet she don’t get that gonoph husband of hers to brake twenty akers next plowing. She can’t have it if she lets Oscar live on it, I want I should have it back if she does.

Tell Mamma that six hundret dollars she been looking for ten years is buried from the backhouse behind about ten feet down. She better let little Frederich do the digging and count it when he come up.

Pastor Luchnitz can have three hundret dollars if he kisses the book he won’t preach no more dumhead talk about politiks, He should a roof put on the meeting house with and the elders should the bills look at.

Mamma should the rest get, but I want it so mine brother Adolph should tell here what not she should do so no more slick irishers sell her vakom cleaners. They noise like hell and a broom don’t cost so much.

I want it that mine brother Adolph be my execter and I want it that the judge please make Adolph plenty bond put up and watch him like hell. Adolph is a good bisness man but only a dumkopf would trust him with a busted pfennig.
I want dam sure that schliemiel Oscar don’t nothing get, tell Adolph he can have a hundret dollars if he proves judge, Oscar don’t nothing get. That dam sure fix Oscar.
Signed: Herman Oberweiss”

Probating Mr. Oberweiss’ “will”, unfortunately, was difficult if not impossible because it has several problems.
To be a valid Will in Texas a Will must show testamentary intent. However, Mr. Oberweiss states in paragraph two of his Will that “if she lets Oscar live on it, I want I should have it back if she does.” This seems to indicate Mr. Oberweiss would still be alive.

Texas law also requires two witnesses subscribe their names to the Will in the testator’s presence. Mr. Oberweiss’ Will lacks the signature of any witnesses.

Another problem area for Mr. Oberweiss is his failure to adequately identify his heirs. Who are “Oscar”, “hilda”, “Mamma”, “Little Frederich” and “Adolph?” They appear to be family but we do not have their last names and so identifying them is difficult. For example, while Mr. Oberweiss is familiar with who “Mamma” is, we do not know from the Will. Several “Mammas” could appear claiming to be the one referred to in the Will.

Mr. Oberweiss would like “Mamma” to get at least six hundred dollars, that she has been trying to find for ten years, however, we do not have an adequate description of where the money really is. It is apparently buried behind what Mr. Oberweiss calls the “backhouse,” but where is the backhouse ?

Further, it is Mr. Oberweiss’ desire “helda” get the “North Sixtie Akers.” How do we know where the “North Sixtie Akers” is? Apparently it is where he was “homing” at the time he wrote the Will. But what does “homing” mean? Where he lived is a good guess, but we really do not know that is what he meant. What if Mr. Oberweiss was no longer “homing” the property he refers to when he died? What then ?

It is clear Mr. Oberweiss belonged to a congregation led by a “pastor.” While several denominations use this term, Mr. Oberweiss was obviously German and therefore would have probably been Lutheran or, possibly, Roman Catholic. But would a member of either denomination (or several others who use the term “pastor”) have referred to his church as a “meeting house?” Neither Lutherans nor Roman Catholics have “elders” at the congregational level. Presbyterians do, and, on occasion, a Presbyterian minister is addressed as “pastor.” But “meeting house?” The term is commonly associated with the Society of Friends, who have no “pastors.” Even more to the point, however – Mr. Oberweiss had a “pastor” and therefore could hardly have been Jewish. Yet don’t you wonder why a well to do farmer of German descent, living in East Texas, would use Yiddish words of execration is speaking of Oscar and Hilda’s husband?

I must confess Herman Oberweiss, nor his family, really exist. He was the creation of Will Sears. Mr. Sears was an attorney in Houston who created Herman Oberweiss’ Will for a Law School Banquet. Mr. Sears passed away in December of 1990. This was one of my father’s favorite articles, so thinking of him recently, I decided to publish it again.

While Herman Oberweiss does not exist, this Will does afford me the opportunity to caution you on the hazards of writing your own Will using a form from the Internet or Do-It-Yourself Will kit. You may save a few dollars, as did Herman, but in the long run the goal of a Will is to make sure your last wishes are accomplished. Hiring an attorney to write your Will can help you ensure that the technical formalities of Texas law are followed and that your gifts are clear and easily understood. While a professionally prepared Will may not make all of the deceased loved one’s family members happy, it will help insure that the true wishes of the decedent are carried out. THAT will damn sure fix Oscar.
—
Sam A. Moak is an attorney with the Huntsville law firm of Moak & Moak, P.C. He is licensed to practice in all fields of law by the Supreme Court of Texas, is a Member of the State Bar College, and is a member of the Real Estate, Probate and Trust Law Section of the State Bar of Texas. www.moakandmoak.com.

The post The Danger of Homemade Wills appeared first on Moak & Moak, P.C. -Attorneys At Law.