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  • Writer's pictureStephen Crane

Importance of a Residue Clause – Planning Your Will

Updated: May 12, 2022

A recent appellate decision (In re Estate of Ethridge, No. 11-17-00291-CV, 2019 Tex. App. LEXIS 9564) reinforces the importance of having a residue clause and of consulting an estate planning attorney when drawing up one’s will.

In 1990, Mildred L. Ethridge executed a one-page typewritten will that she drafted without consulting an attorney. In her will, she named her nephew, Fred Davis, Jr. as her executor and left him all of her personal effects. She had no residue clause that would have covered the rest of her estate.

Mildred died in 1994 and Fred probated her will and was named as executor. Fred believed that he was entitled to some mineral interests that Mildred had owned and deposited the royalties in his personal bank account.

In 2010, Mildred’s heirs found out about the mineral interests and took Fred to court saying that Mildred died partially intestate (without a will) and that they were entitled to the mineral interests, royalties, and money from Mildred’s bank accounts, not Fred.

The court agreed with the heirs. Personal effects, the bequest to Fred, traditionally only included “articles bearing an intimate relation or association to the person of the testator” such as “clothes, toilet articles, eye glasses, and dentures.” The court held that mineral interests (which are real property) did not fall within that definition. Because the will did not contain a residue clause, Mildred died partially intestate. The mineral interests went to her heirs, not to Fred. Although a self-made will can sometimes work out, there is a lot to be said for hiring an estate planning attorney. At attorney could have explained what personal effects meant to Mildred and would have made sure that someone was entitled to the residue of her estate. A few hundred dollars in attorney’s fees could have avoided thousands in fees later on and years of confusion. I have personally probated several self-made wills, and they normally have issues that have to be addressed. Many times, the probate process is more costly due to those issues. I have even had to be the bearer of bad news that a document someone thought was a will did not meet the requirements of a will under Texas law.

Even when a self-made will is drawn up correctly, it may not be executed properly or it may have left out important considerations given the unique circumstances of each family (such as special needs beneficiaries). Also, without an attorney, someone might not hear about other options that might help them avoid probate altogether (like a Transfer on Death Deed) or help them think through other critical estate planning tasks to be done (like reviewing beneficiary designations).

In summary, a good estate planning lawyer may very well be able to save your estate and heirs a lot more money (not to mention stress, confusion and time) in the long run than what you will spend on their fees to get things done properly. For more information, contact Crane Law Firm and let us see how we can help you.

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