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Revised February 02, 2006

2005 Texas Wills Legislation

by

Gerry W. Beyer

Governor Preston E. Smith Regents Professor of Law
Texas Tech University School of Law
Lubbock, Texas

    This article reviews the legislation enacted by the 2005 Texas Legislature relating to the Texas law of wills.  The reader is warned that not all recent legislation is presented and not all aspects of each cited statute are analyzed.  You must read and study the full text of the legislation before relying on it or using it as authority.

A.  Self-Beneficiary Wills

    Probate Code § 58b was originally enacted in 1997 to void testamentary gifts made to an attorney, or someone closely connected to the attorney, when the attorney prepared the will.  Despite the laudable intentions underpinning this statute, it was rather inartfully drawn and has required several amendments over the years.  This year, the key enhancement is to the list of testamentary gifts which are deemed void unless they fall within one of the exceptions which have not changed.  Below is the list of void gifts assuming the will was executed on or after September 1, 2005:

·         Attorney who prepares the will,

·         Attorney who supervises the preparation of the will,

·         Parent of the attorney,

·         Descendent of the attorney’s parent (e.g., child, grandchild, brother, sister, niece, nephew, etc.),

·         Employee of the attorney, and

·         Spouse of any of the above individuals

B.  Exoneration

    Texas had long followed the doctrine of exoneration, that is, debts on specifically gifted property were paid from other estate assets so that the beneficiary receives the asset unencumbered, rather than just the testator’s equity.  See Currie v. Scott, 187 S.W.2d 551 (Tex. 1945).

    The doctrine has been abolished for wills executed on or after September 1, 2005.  A specific gift passes subject to each debt secured by the property that exists on the date of the testator’s death under new Probate Code § 71A.

    The statute contains two special rules.  First, the testator may expressly provide in the will for the debts against a specific gift to be exonerated.  Note, however, that a general provision in the will stating that debts are to be paid is not sufficient.  Second, there is a new provision addressing the situation where a secured creditor elects matured secured claim status as discussed in § III(E)(1), below.

In publishing this article, the author is not engaged in rendering legal, accounting or other professional service. If legal advice is required, the service of a competent professional should be sought.