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When is a will effective?

Written by Robert Ray

Robert Ray is the Editor and owner of this site. Board Certified, Personal Injury Trial Law — Texas Board of Legal Specialization. We handle inheritance disputes throughout Texas. Our principal office is in Lantana, Texas (DFW area).

Last updated Mar 10, 2014

A will normally becomes effective when the testator dies. But what happens when the testator revokes a prior will or revokes a trust? Does the revocation become effective on the date of death or on the date that the will was executed?

Consider these facts: A woman creates a revocable trust leaving real estate to a grandson. Later, she becomes upset with the grandson. She makes a will. The first part of the will says “I revoke the trust that I created for my grandson.” Neither the trustee nor the grandson know about the will. No one knows about it other than the testator and her attorney.

The lady dies but before her will is filed for probate, the trustee deeds the property to the grandson because he has reached the age set in the trust to receive the land. Neither the trustee nor the grandson were aware of the will. The question is does the property belong to the grandson or the person named in the will to receive it?

The court pointed out that “(e)ven though the settlor (person who creates the trust) has revoked the trust, the trustee incurs no liability for acts done by him in accordance with the terms of the trust before he receives notice of the revocation. A beneficiary, however, who has received the trust property after the trust has been revoked will not be permitted to retain the property merely because neither he nor the trustee had notice of the revocation of the trust when he received the property.” The court then awarded the property to the person named in the will. Sanderson v. Aubrey.

The point is that a will only becomes effective on the death of the testator. However, non testamentary parts of the will like the part revoking other wills or trust become effective when the will is executed, not when the testator dies. If a person executes a will that revokes prior wills, that revocation is immediate regardless of whether the testator eventually revokes the current will.

Copyright by Robert Ray a Texas inheritance attorney. The foregoing information is general in nature and does not apply to every fact situation. If you are concerned about inheritance laws, inheritance rights, have a family inheritance dispute, a property dispute or want information about contesting a will and need an inheritance lawyer, we can help. Please go to our main site and use the contact form to contact us today. We are Texas inheritance lawyers and would love to learn about your case and there is no fee for the initial consultation.

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