Posted by: Ruby Bolton
August 09, 2008
Topic: Things to condsider in writing a will in Texas

There are a lot of wills located in safe deposit boxes across the state of Texas. As long as your heirs know that you have a safe deposit box and where it is located, this is a great solution to the question of where to keep your original, finished document.
The Texas Probate Code allows a representative of the bank to allow a spouse, parent, or adult child of a deceased person to search the safe deposit box for a will. If a will is found, the bank can release it to either the named executor, or to the Court, after making a copy and obtaining a receipt. The bank is required to keep the copy for four years. If the financial institution refuses to allow a search, Texas Probate Code Section 38B allows the Court to order the search. Under these circumstances, the Court sends a representative who accompanies the bank representative and the person searching. If a will is found, it is submitted to the Court. These safegaurds make it highly unlikely that a will kept in a safe deposit box will be "lost" by a disappointed heir.

At one time it was common for attorneys to keep original wills in their files, and give the clients a copy. I originally thought that this was to ensure that the attorney who drafted the will, also got to collect a fee for probating it, but I have had enough of my own clients ask me to keep original wills to believe that clients expect to benefit from this arrangement as well. I always refuse to keep the original will because I don't believe it does benefit the client. Attorneys die just like other people. They also move, retire, or change professions. And what then happens to their client's files? The most colorful experience I had with this was attempting to track down an original will where the attorney had been disbarred and moved to Las Vegas. I found his old partner, who directed me to the attorney's last operational office. The old landlord then told me that the attorney had skipped out on his rent, and he had burned all the boxes and boxes of files the attorney left in the office. Needless to say we did not recover that will. Fortunately, we were able to give ample evidence as to what had happened to it, and the Court allowed us to probate it as a lost will. Do not leave your original will with your attorney.

Texas Government Code 118.062 provides that the County Clerk can charge you a $5 fee for keeping your will for safekeeping. This is an ideal solution. Just keep in mind, that noone will be expecting it. If you do not specifically tell your heirs that your will is in the County Clerk's office, they are likely to discover it only after giving up their own search, and hiring an attorney to file an intestacy proceeding. It is possible that it would not be discovered even then. As a practical matter, very few people file their wills with the County Clerk. This is largely because it is not convenient. Unless they have changed their policies, both Harris and Montgomery County require the Testator to file their own will, in person. If you rewrite your will, you also have to go, in person, to get the old will out of safekeeping. However, the great advantage is that the Court now knows that your will exists, and if the County Clerk has gone out of business, probating your will is probably the least of your heirs' concerns.

A safe located within your home can be a good place to keep your will, provided that it is large enough not to be easily stolen. A small safe will be a thief's #1 target. The theif will likely be frustrated after hauling away a heavy safe, and cutting it open, only to disover your personal papers, but his frustration will not get your will back. A filing cabinet is less likely to be stolen, but should only be used if it is also fireproof and floodproof. One option available to almost everyone is the freezer. If you place your documents in a ziploc bag in your freezer they are fireproof, floodproof, readily accessible and unlikley to be stolen. Of course, they are also easily disposed of, so if there is someone who is going to be unhappy with what you have written, you will want to choose a different option. You will also want to be sure and let your heirs know to check your freezer, as it is unlikely to occur to them on their own.

If you expect your will to be controversial, the best place to keep it is with the County Clerk. If the contents of your will will be welcome to everyone, than any place mentioned above will work, just let your heirs know which location you chose.

If you would like to see an attorney about either writing or probating a will in the Harris and Montgomery County offices, please contact my office at 281-351-7897 for an appointment in either Tomball, or The Woodlands. Conroe clients may reach us at 936-271-2671.

Where should I keep my will?

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