Every day we deal with products and services with expiration dates. Coupons expire. Medications outlive the printed “Use By” date on the box. And of course food either outlives the expiration date on the packaging or grows multi-colored fuzz that lets the world know it is no longer fit to consume.
But what about a Last Will and Testament? Does a will expire? Does a will have a “Use By” date? The short answer is no, a will doesn’t expire. However, a will can easily become irrelevant over time if it is not maintained. To illustrate this point, a few facts need to be discussed. First, there is a system of probate that will distribute a person’s estate if no will exists, or if the will is never admitted to probate. The first fact leads to the second: a person’s will does not have to be probated at all in spite of the intentions of the person leaving the will.
Why would a surviving spouse or other beneficiary of the will choose not to probate the will? There could be many reasons, but usually the reason is simple. The beneficiary would benefit more if the will is not probated;the estate will be distributed according to the Texas Probate Code, and the beneficiary will get a larger share of the estate under the code.
For example, what if the testator (the person who leaves the will) changed his estate in such a way that the surviving spouse no longer receives the marital residence because the specific home listed in the will burned down at some point and the couple bought a different house? Or what if the testator created a provision where his children were to receive his 20,000 shares of stock, but he had long since sold those stock and used the money to buy a Ferrari,so now the kids get nothing? Or what if the will stated “To my beloved wife, Sue the mother of my three children, I leave the farm in Hill county, which I inherited from my sainted mother” except the testator had divorced Sue twenty years before and had remarried to Mary with whom he had two children?
In the above examples it is clear to see that the will has, in some ways, expired even though it is technically still a valid will. In each of these cases it would be possible that the person named as executor or another person with an interest in the testator’s estate would not attempt to probate the will because he or she would benefit more from the probate system—as if the testator didn’t leave a will at all. The examples above may seem far-fetched what with a Ferrari and all, but the serious consequences of an “expired” or irrelevant will can be devastating. Imagine leaving your surviving spouse a home he or she cannot afford to keep because your other assets were allocated to other people or entities during your life but your will was not updated to correct for the changes in the estate.
A person prudent enough to have a will to start with should be savvy enough to keep the will updated. To help with that very situation, the will I provide to my clients has what I call a “lifetime warranty”. Included in my price for a will packet (my will packet includes a will and four other documents to protect my client in times of need) are cost free updates to the will for as long as I am in practice. So anytime one of my will clients has a birth or death in the family, divorces, remarries, buys a home, sells a home, buys any tangible property or sells any, or has any other life event that could affect the will, the client may call and have the will updated free of charge. Additionally I call annually to check in with my will clients to make sure the will is still valid. Because of the laws regarding how wills are handled by the courts, sometimes a whole new will would be required if there are changes that need to be made, but in my practice the cost is included in the price of the first will.
As always, this essay is not meant to replace competent legal counsel. Rather, it is meant only to be educational in nature. With that in mind, if you have a will from years ago, dust it off and review it. Make sure it still distributes your estate like you want it to. If it no longer reflects your wishes, seek counsel from an attorney to make it current. Like a fuzzy black banana in the bottom of your fridge, you should get rid of and replace an “expired” will.