The Importance of a Comprehensive and Current Estate Plan in Texas: Estate of Ted Williams as a Cautionary Tale

Every client who engages the Newill Law Firm for a Family Legacy and Wealth Planning Package gets a plethora of documents which cover all of their estate planning needs.  Many people mistakenly believe they can execute an estate plan and never re-visit the documents.  An estate plan is not static.  The plan must change when your wishes or life circumstances change.  Not only is it important to have a complete and comprehensive estate plan, it is critical to update your plan if your wishes change and to implement an attorney to make those changes to ensure they are done correctly. 

 

One optional document we offer is an "Appointment of Agent to Control Disposition of Remains."  This document states who you want to make decisions regarding your remains once you pass away.  Most people think they do not need this document...and hopefully they never do.  More often than you would anticipate families, especially blended families, fight over who gets to decide whether the deceased family member is cremated, buried, frozen, or launched into space like Gene Roddenberry, creator of Star Trek.

Sometimes simply stating how you would like your remains handled is not enough, you also need to specify who controls the remains.  A very strange case which illustrates this point arose in the Estate of Ted Williams, a famous Boston Red Sox player and baseball manager.  Williams died in 2002, leaving a Will executed in 1996, which stated he wished to be cremated.  Daughter, Bobby Jo Williams Ferrell, called for cremation of Williams's remains.  His children from another marriage, Claudia Williams and John-Henry Williams, presented a note allegedly signed by Williams in 2000, which stated he wished to be cryogenically frozen, along with his children, so they could all potentially be reunited in the future.  The executor of the Estate supported the position Williams wished to be cryogenically frozen.  A legal battle over the remains ensued.  After spending substantial sums on litigation, Bobby Jo Williams Ferrell eventually withdrew her objection to cryogenic preservation of Williams.  Ultimately, Williams was cryogenically frozen and remains frozen today.  The issue of how Williams truly wanted his remains treated has never been resolved. 

Writing an update to your estate plan on a napkin, scrap of paper, or bathroom stall is unlikely to produce quality results.  As illustrated in the Estate of Ted Williams, not only is it important to have a comprehensive estate plan, it is critical to update your plan if any of your wishes change or if your life circumstances change and to use an attorney to make any changes to your estate plan.  

Where To Store A Texas Will

So, you have completed your estate plan and now you have to find a place for the documents to hibernate until they are needed.  Your estate planning documents will not serve you well if you stash them in that old box of "important" documents you keep in the attic and promptly forget where they are located.  In Texas, lost wills are presumed to be revoked.  Although this presumption can be overcome, and a copy of a will can sometimes be probated, it is much wiser to keep track of your original documents.  

File Will
Under Texas Probate Code Section 71, a person may deposit their will with the County Clerk in the county where the testator (person who made the will) resides for a minimal fee.  In Bexar County the fee for safekeeping of a will is $5.00.  This procedure ensures the original will is safe and easy to locate.  When the testator dies, the original will can be easily accessed and probated.  Depositing a will does not prevent the testator from changing the disposition of his or her will.  The testator may retrieve the will during his or her lifetime, thus enabling him or her to amend the will or execute a new will.

Safe Deposit Box
Another option is to store original documents in a safe deposit box.  When selecting this option for safekeeping it is important to inform your family where your safe deposit box is located and verify someone else is able to access the box.  If no one has access, once the box owner passes away under Texas Probate Code Section 36D the financial institution may allow a spouse, parent, adult descendant, or person named as executor in a copy of the will to inspect the box.  If the institution will not allow access, the court may order inspection under Texas Probate Code Section 36B. 

The above inspection provision will not guarantee access to the box if the testator is still living but becomes incapacitated and has stored his or her power of attorney documents in the safe deposit box.  Thus, when utilizing a safe deposit box, which is under the supervision and control of a financial institution, it is important to discuss access with your bank and consider having multiple keys and/or holding the box as joint tenants with someone you trust who can access the documents. 

Fire Proof and Flood Proof Safe or Cabinet

Keeping original documents at home clearly provides the most access and control over the originals.  The originals should be kept in a large fire proof and flood proof safe or filing cabinet.  Original documents would be likely to survive any natural disasters or fires in these locations and thieves will be unlikely to steal large and cumbersome safes or cabinets.  Investing in a safe or cabinet will provide a secure place for your documents and peace of mind regarding their safety. 

Regardless of where you store your original documents, there are several things everyone can do to substantially increase the likelihood their documents will be found when they are needed.

1. Inform.  Inform family members, friends or those you appointed in your documents where you are keeping your originals.  If utilizing a safe deposit box or safe, make sure someone you trust also has access to the documents. 

2.  Copy.  Give copies of your documents to the nominated persons in your documents, family members, and potentially your primary doctor.

3.  Mark.  Mark your copied documents as copies so it is clear they are not originals.  I am often presented with copies of documents which people believe are originals. 

4.  Consider Your Situation.  Consider whether anyone will be unhappy with the disposition you have made in your will and store your documents accordingly.  For example, if you disinherit one child it may be advisable to store the original documents in a place where that specific child will not have access.  Consider who you trust.  Consider where you can store the documents to achieve maximum security yet accessibility.