A move most likely means update your documents
Q: I moved to Houston five years ago. My will and power of attorney for health care were prepared by attorneys in Chicago. My daughter is named executor and attorney-in-fact. I have not had the documents updated by attorneys in Houston. What are the ramifications of not redoing my will and power of attorney in Texas?
A: If you pass away with an Illinois will, in order for the court to admit your will to probate, your daughter will need to find two persons who can swear to your signature.
Oftentimes, the problem is that most, if not all, of the people who are familiar with your signature might be living in Illinois. Or they might be dead, if you live long enough.
If you have a will that is prepared and executed according to Texas law, with the proper statutory language, then no witnesses will be needed in court.
In addition, there might be other provisions missing from your will that could make the probate more cumbersome.
As far as your power of attorney for health care is concerned, the Illinois form is very different from the Texas form. If your daughter needs to use it at a hospital, she might have no problem at all. But she might also find herself battling to be
allowed to act as your agent. It would therefore be better for you to have the Texas medical power of attorney form.
Q: You said in one of your answers that two children could serve as co-trustees under a will. My attorney told me that if I set it up this way, both trustees would have to be party to every transaction. I decided against this approach because it’s hard to get both my sons together. If the advice is true, shouldn’t you have advised accordingly, as this caveat is important to consider before making a final decision on the matter?
A: It is common for two or more persons to serve jointly as co-trustees of a trust or co-executors of an estate. Parents with two children often name both children to serve together so they will not be perceived as having favored one over the other.
A will can be written to allow each trustee or executor to act alone, without the other trustees or executors having to join. When the children get along, and they act reasonably, everything will proceed just fine.
Of course, when you have two or more persons serving together, problems can arise. For instance, one of the first decisions is which lawyer to hire. If the children can’t agree, then the estate administration is delayed.
There will also be certain transactions, such as the sale of real estate, that will require all signatures For the most part, everyday actions can be handled by just one person if the will allows it.
The information in this column is intended to provide a general understanding of the law, not legal advice. Readers with legal problems, including those whose questions are addressed here, should consult attorneys for advice on their particular circumstances. Ronald Lipman of the Houston law firm Lipman & Associates is board-certified in estate planning and probate law by the Texas Board of Legal Specialization. Email questions to stateyourcase@ lipmanpc.com.