Example of Why a Will Needs to be Updated After Divorce

The Haga v. Thomas, No. 01–12–00218–CV (Tex. App.–Houston (1st Dist.) 2013) case provides an example of why wills need to be updated after divorce.  While Texas law provides a remedy for when a will names a former spouse as executor and beneficiary, as demonstrated in the court case, the remedy does not always apply.

Facts and Procedural History

Mr. Thomas was a resident of North Carolina when he died.  He owned personal property in North Carolina and real estate in Texas.  He was survived by his parents.

Mr. Thomas executed a will three years prior to his death.  He was married at the time and the will named his then wife as the executor and the primary beneficiary.  It also named his wife’s son as the successor executor and contingent beneficiary if his wife died before he did.  The will also said that Texas law was to apply.

Mr. Thomas divorced his wife one year prior to his death, but Mr. Thomas’s step-son survived.

His will was admitted to probate in North Carolina by his step-son.  Even though Mr. Thomas’ step-son had already admitted his will to probate in North Carolina, Mr. Thomas’ parents filed for probate in Texas.

Which State Can Probate the Will?

The law of the state a person is a resident of generally controls with respect to the probate of his personal property.  For real property, the law of the state where the property is located controls.

Since the will was probated in North Carolina, the appeals court concluded that North Carolina’s law governed the disposition of Mr. Thomas’ personal property and Texas law governed the disposition of his Texas real estate.

This means that Texas law applies to determining who can serve as executor in the Texas probate and how to construe the will.  This in turn impacts which beneficiaries are entitled to Mr. Thomas’ real estate.

The Will Providing For a Divorced Spouse

Texas law addresses situations where a will lists a former spouse as executor and/or as beneficiary.  Specifically, Texas law provides that the will is read as if the former spouse and the former spouse’s relatives (those unrelated to the decedent, i.e., step children, in-laws, etc.) failed to survive the decedent.  North Carolina law does not include a similar provision.

Given that the will specified that Texas law applied, the Texas probate court concluded that the step-son was disqualified as executor, it admitted the will to probate in Texas for the disposition of the real estate, and it determined that the decedent’s parents were entitled to the Texas real estate.

This meant that Mr. Thomas’ parents would be the rightful beneficiaries of his Texas real estate, even though they would not have been the rightful beneficiaries if North Carolina law applied.

Do you need help with a probate matter in Houston or the surrounding area?  We are Houston probate attorneys.  We help clients navigate the probate process.   Call today for a free confidential consultation, (713) 909-4906.  

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