"Why, yes - I AM a convicted felon..."

We do a lot of probate - settling people's estates after they die - here at the Jacobson Law Firm.  Although each case is different, most of them follow a very similar pattern in how we gather the information needed, how we arrange for witnesses if necessary, set the case for hearing, etc. , so that there are no surprises when we're standing in front of the judge.  Some of the questions that we ask clients and witnesses can seem a bit intrusive, but that's the information the court needs in order to make sure everything is in order.  If we don't get all the information, it can create a problem.

So you can imagine my surprise when my client, who was named as the executor in the will, responded to the judge's question, "You've never been convicted of a felony, have you?" with,  "Yes, ma'am..." Awkwarddd...In fact, as we sat in the courtroom waiting to be called to the bench, every time the  judge got to that question with other cases, I had the nagging thought, "I asked him that, right?  Did I ask him that?  I must have...besides, what are the odds?"  Nope.

The takeaway for me was, "Put that on EVERY probate questionnaire!" - this situation occurs so infrequently that it's easy to gloss over in client interviews, and frankly, it would have been less awkward for him to tell ME he had a felony conviction than to have to admit it in open court.  You see, felonies and crimes involving what's called "moral turpitude" (fraud, embezzlement, theft, etc.) disqualify that person from serving as an executor, pretty much no matter how long ago the crime occurred.    My client's conviction was nearly twenty years earlier when he was, in his own words, "a different person".  None of that matters to the court.  We'll get the issue resolved and move forward, but it's better to avoid this type of problem than have to recover from it.

The takeaway for you is this: when you are choosing your fiduciaries (executors, trustees, guardians for minor children, etc.), ASK THE QUESTION.  Even if you know the person well.

A second takeaway: please, please, PLEASE don't use a "one size fits all" will from an online service.  This particular will was downloaded from the internet (don't GET me started) and prepared in a hurry without the aid of an attorney because of the decedent's medical condition, and granted, it's not general knowledge that convicted felons can't serve as executors.  But if they had gone to an estate planning attorney, this hiccup could have been avoided.

As always, the above is legal information, not legal advice, and it's based on Texas law because I'm a Texas lawyer.  Each situation is unique, so please consult an experienced estate planning and probate attorney if you have questions about yours.