my bible in the hopes that he will one day actually open it.

That is what we call a nominal gift. They are more common than you might think. It is not usually a bible, I more often see $1, or $100. I think they appear for two reasons. The first is a desire on the part of the person making the will to get one last dig in at someone they dislike, but I think that a more frequent reasoning is attorney advice. The fear is that if you made no mention of one of your children, it could be argued that you accidently forgot them, thereby opening an avenue for a will contest. Also, the legal requirements for being competent to make a will include knowing "the natural objects of your affection", i.e., your family. So if you are not competent enough to know who your children or spouse is, you are not competent enough to make a will. And if you have four children, and divide all your property among three of them, maybe you weren't all that competent to begin with. So there are attorneys out there who, over the centuries, have advised their clients "Don't completely disinherit a child, leave them something. How about $1." The theory is that you have proven you know they exist, and it was not senility or error that caused them not to inherit.

I have always been against nominal gifts, although I have written them when a client felt strongly. I think the nominal gift puts the executor in a difficult situation, and can increase the possibility of a will contest. Lets look at three scenarios where the nominal gift causes problems.

In the first case, dad was furious with Leo and instructed his executor to give Leo one handful of dirt from the family homestead. The executor, Leo's sister was actually on pretty good terms with Leo. Does she now have to actually give him a handful of dirt? Well, yes. She took an oath to the Court to uphold the will. So now she has to choose between hurting her brother's feelings or dishonoring the will, the Probate Court, and her own oath.

But more commonly, the executor does not want to give the nominal gift, because they do not want to cause potential problems. Bart has not kept in contact with his mother at all. In fact, if had not been for the nominal gift that suddenly arrived, he would never have known his mother died. But now he does know. And he knows there is a will submitted to the Court, which means an inventory is on file, and Bart is curious, so he gets a copy from the Court and wow! Bart had no idea mom was worth that much. If his mother had given him half, instead of leaving everything to his rotten sister, Lisa he would have gotten . . . enough to see an attorney over, anyway. And since Mom lived with Lisa the last 5 years of her life, he is going to argue the Lisa exercised undue influence over Mom. And suddenly Lisa is facing a will contest, all because she sent a nominal gift.

In the third scenario, Uncle Jesse tried to write his own will, and he left his daughter, Daisy $1. But not being a lawyer, he didn't do a very good job of the will. He didn't provide for an independent administration, which means the Court has to oversee everything, and the executor, Luke, will need a bond, and the probate will cost a lot, lot more. Unless, you can get the agreement of all the beneficiaries. But wait-Daisy was left $1. That makes her a beneficiary. And why should she agree to an independent administration? That $1 gift just cost Uncle Jesse's heirs several thousand dollars.

The argument against a nominal gift is even stronger now. On September 1, 2007, the Texas legislature passed Texas Probate Code 128A, which requires that the executor send a copy of the will to every beneficiary of the will within 60 days of the will being admitted to probate. Then the executor has to file an affidavit with the court listing the beneficiaries and the addresses, and swearing that the notices have all been sent. Even if a disinherited child is aware of their parent's death, there is something about holding a copy of the actual will in your hands that makes you think of contesting it. After all, you already have it, you may as well take it to a lawyer and just see what they think.

I never advise in favor of a nominal gift. Not only are there the three arguments listed above against it, but there really is no reason for it. The legal concerns that cause some attorneys to advise client to leave their child $1, can be addressed in other ways. For example, you can put in a paragraph that says essentially. "I have deliberately made no provision for my son, Zorro. I have a good reason for this decision, and he is familiar with it."

If you have questions regarding this, or another matter, please contact my office at 281.351.7897 to schedule an appointment with an attorney.

Visiting this blog does not create an attorney-client relationship. Information should not be considered legal advice.

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