Arlington, TX asked in Estate Planning and Probate for Texas

Q: My husband and his sister are co- executors of their brother's estate. We have just learned that the will she filed in

Court is not the will that their brother wrote. Before he passed, the entire family gathered and he made his wishes known. As a family, we prepared his will, and had a notary come to notarize. It turns out that the notary had an assistant with her. This assistant re-wrote the will by hand, omitting several items. This handwritten will is the one on file. What options, if any, are available to remedy this? The family is in agreement regarding my brother- in-law's intended wishes.

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3 Lawyer Answers
Ross F. Tew
Ross F. Tew
Answered
  • Estate Planning Lawyer
  • Arlington, TX
  • Licensed in Texas

A: The beneficiaries under a will can enter a family settlement agreement which amends the will's terms, but you would want to sit down with an attorney to review the will and the terms you wish to change before drawing up the settlement agreement.

Tammy Lyn Wincott agrees with this answer

Tammy Lyn Wincott
Tammy Lyn Wincott
Answered
  • Estate Planning Lawyer
  • San Antonio, TX
  • Licensed in Texas

A: I suggest you speak with the attorney handling the probate. A handwritten will in Texas is called a "Holographic" will and must be completely in the Testator's handwriting.

Mr. Tew is correct, you can file a settlement agreement that may be different from the terms of the will or which more clearly defines the distribution of assets.

Terry Lynn Garrett
Terry Lynn Garrett
PREMIUM
Answered
  • Estate Planning Lawyer
  • Austin, TX
  • Licensed in Texas

A: Submit the will not handwritten by the notary. In Texas, at least, a handwritten will must be handwritten by the decedent.

If this is not possible, enter into a family settlement agreement and/or hire an attorney to contest the "will." It appears that it can be contested because it is not in the decedent's handwriting and because it is an incomplete copy of the actual Will. At the very least, there is a partial intestacy (some things were omitted), which will require the court to determine heirship of the omitted property.

Report the notary to the Texas State Comptroller or equivalent licensing agency in your state.

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