We're a firm that does a lot of probate, and sometimes an easy fix will come up of which I should have been aware but which had escaped my notice. We're in the midst of settling both my father's estate and my father-in-law's estate at the moment, and I have discovered (or re-discovered) one of those things: In Texas, there's an easy way to take one load off of your spouse when you die, and that is to designate ownership of your vehicles as "joint tenants with right of survivorship".
When a person dies owning a vehicle, the inevitable hassle begins as to how the car gets re-titled. Even if both names are on the title, the state presumes it's community property and so the decedent's half has to be conveyed to the survivor. That requires either a probate action or an affidavit of heirship for transfer of motor vehicle, both of which take time and cost money and involve dealing with sometimes surly employees. However, there's a place down at the bottom of the form (see below) where you and your spouse can choose to own the vehicle as "joint tenants with right of survivorship (JTWROS). When you make this election, when the first spouse dies, the surviving spouse just keeps on owning the vehicle - no need for an affidavit of transfer or probate.
Making use of this option will give your surviving spouse one less thing to fret about. That may seem small, but in the midst of grieving and changing accounts, and getting Social Security (or, worse, the Texas Teacher Retirement System - don't GET me started) to respond, and probate, anything that lessens the burden helps immensely. Do each other a favor: sign the JTWROS statement on your car title.
As always, this blog is based on Texas law because I'm a Texas lawyer, and it shouldn't be construed as legal advice, just legal information. Every case is different, so if this raises questions in your mind, please consult a lawyer who deals in this sort of thing.
As an estate planning, probate and business law firm, we see a lot of the same things when people do their own legal work: things left undone that can come back and bite you. For example, a lot of entrepreneurs will either file an assumed name certificate (a "DBA") and think they're protected from something (they're not), or start an LLC by filing a Certificate of Formation with the Texas Secretary of State and think they're good to go (they're not). Likewise, people who do their estate planning online will crank out a "Texas-specific" will or power of attorney without checking with an honest-to-goodness Texas estate planning lawyer and think their family will sail through probate when they die. Often, they won't.
A couple of weeks ago I talked about the fact that "boilerplate" language is in contracts because at some point in the past, the thing it's designed to avoid actually happened. In much the same way, setting up your business correctly will go a long way toward protecting you from liability, but ALSO, every business needs to have a corporate book where the annual meeting minutes are kept. This means you need to actually do annual meeting minutes, which waaaaay too many entrepreneurs forget about. The fact that, unless somebody actually sues the business, nobody will ever see those minutes except you and perhaps the law firm who drafted them for you, doesn't mean they don't need to be done. They keep your business healthy and protected.
Likewise, when you do a will or other estate planning (EP) documents without running them by somebody who's seen all the bad stuff that can happen if they're not properly prepared or executed, you leave yourself and your heirs exposed to the possibility that when you need those documents, they won't be correct and complete and therefore won't do what you wanted them to do. Examples? In Texas, a will that's not self-proved can't be admitted to probate without having one or more of the witnesses come and testify. If you had some bank employee or neighbor serve as a witness and there's no self-proving affidavit or the language that both attests and self-proves the will, it's entirely possible your heirs' attorney, the person trying to probate the will for them, won't be able to find those witnesses. Does that online will have the proper language? How do you know?
The title of this blog, "Legal Floss", points to the things that a lot of people don't bother with, thinking it's just a bother and not necessary - kinda like flossing your teeth. Ask my friend and dentist, Dr. Jip Holmes (www.smilesbydrholmes.com/), and he'll tell you, "You only have to floss the teeth you want to keep." Likewise, you only need to have a lawyer look at the documents you or your heirs need to rely on later. As I've mentioned before: when you need them, it's too late to get them.
As always, this blog is legal information, not legal advice, and it deals with Texas law because I'm a Texas lawyer. Your facts will determine the advice you get from a lawyer. If you have questions, go see a lawyer who practices a lot in the area you need, whether business, estate planning or probate. And remember: prevention can keep you from needing a cure!
Musings, observations, the occasional whineage and some funny stuff.