Living Trust

In case you were wondering – Texas doesn’t allow an antemortem probate.  That is a probate of a person’s will while that person is still living.

There is a statute that specifically prohibits it – Estates Code 256.002 – which provides “ The probate of a will of a living person is void.”   There is a companion statute – Estates Code 301.001 – which provides “The administration of an estate of a living person is void.”

Why, you might ask, would Texas have two statutes that address something so obvious?    The answer is simple:  to ward off crazy ideas before someone attempts to import them  across our borders.

In fact, there are three states that do allow lawsuits to prove the validity of a will while the testator is still living:  Arkansas, North Dakota and Ohio.    The rationale is that such a lawsuit can provide  a means of winning a will contest during the testator’s lifetime.

Would it make you feel special to watch your beneficiaries sue each other, and you,  over the terms in your will?  If you think so, then perhaps you should move to one of those 3 states.  We can probably find someone to help pack your bags.

Undoubtedly there are legal scholars in Arkansas, North Dakota and Ohio  who think that an antemortem probate is a good use of time and money.  Here in Texas, however, we think that until a person is dead, there are no heirs, there is no will, the named beneficiaries have no interest, and the probate court has no jurisdiction.  No, no and no.

We also frown on burying people who are still alive.    But that’s a column for another day.

Hammerle Finley Law Firm.  Give Us a Call.  We Can Help.