Can I use a will from on-line or an office supply store? I never hear this question in my office. If my clients didn’t think a professional was necessary, they wouldn’t have scheduled an appointment to see me. However, this is the question I am most often asked outside my office, wherever people discover that I write wills. While almost everyone knows they should have a will, most people don’t. A form or store-bought will does seem like a cheap and easy alternative to an expensive lawyer. Nevertheless, my objection to such wills may be summed up in the words of a Taylor Swift song: “You don’t know what you don’t know.”
So, the quick answer to this question is that wills that promise they are “valid in all fifty states”, usually do, in fact, produce a will, which is valid in Texas. However, you may be letting your heirs in for a lot of heart ache if you actually use one.
There are five major reasons not to use prepackaged or fill-in-the-blank wills.
- It may easily end up costing more in the long run. Form wills often cost more to probate, and often take more of your (and your probate attorney’s) time. Texas has an unusual but effective probate process. A properly written Texas will is both quick and relatively inexpensive to probate. Those one-size-fits-all wills are often not written to take advantage of our Texas laws. Over the years, we have seen form wills from 11 different companies, including some of the most heavily advertised companies, and have yet to see a will which is written to take full advantage of Texas’s stream-lined probate system. In sum, having a valid will is not enough; it must also be the best will for probate proceedings in Texas.
- Your will may not say what you think it says. I have seen this in my practice when box wills are brought into me for revision. Do you know what “representation per stripes” means? If not, the extra money spent on a lawyer just make make a difference. A good example is a man with two children and three grandchildren. When interviewed, he wanted to split his property evenly between his two children. In the event one of his children died before him, he wanted the children of his dead child to inherit their parent’s share. He was unaware that, under the computer generated form he had had in place for the last several years, if one of his two sons died before him, the surviving child would inherit everything. Of course, with respect to the form wills that I have been asked to probate, I cannot tell my client whether or not the testator intended to disinherit his grandchildren, I can only tell them that he did.
- You probably have not thought of everything which should be addressed in your will, and most forms will not make the suggestions to you. The most common element left out of form wills is what should happen if a minor ends up inheriting property. Almost every will has at least some possibility that this will occur. Even if your children are grown, most people want their grandchildren to inherit if a child predeceases them. In that case, who will manage the money? Should it be the grandchild’s surviving parent? What if the surviving parent divorced your child, or if they were never married. Maybe you just don’t trust the other parent. At what age should the children/grandchildren come into their inheritance? What restrictions should be placed on the money? It is a rare eighteen year old capable of being responsible for more than one month’s living expenses. Any competent attorney will walk you through these questions and suggest solutions. Most form wills will not.
- When you see an attorney for a will, you usually get a lot more. By this, I mean a lot more documents. A power of attorney in particular is frequently needed in addition to any will, and, if you do not have one in place, it can cost your family thousands of dollars in fees and expenses for a guardianship proceeding.
- If you use an attorney, you have greater confidence that your will has been properly executed. This may seem like a very simple thing, but it ends up being a problem a lot more often than you would think. Not only must the witnesses be present when the will is signed, but the testator needs to be present when the witnesses sign. Also, people who inherit, cannot act as witnesses. The testator must state to the witnesses that he is signing a will. These issues and other have been used to hold an otherwise legal will, invalid. This is why most attorneys have wills signed in their offices, rather than sending a client home with an unsigned document.
As an aside, courts have also determine some fill-in-the-blank wills to be invalid holographic wills (wills written in the handwriting of the testator) and thus not subject to probate. If you have a fill-in-the-blank will for probate, we strongly urge you to have the assistance of counsel prior to attempting any probate.
Here is a good example of why you might want an attorney to assist you in drafting a will. Often, I have a client come in who owns a “special car,” and the client desires that a particular child inherit that special automobile. Drafted by himself, the will might plainly state: “To my son, John, I give my 1969 Corvette.” Well, the right 1969 big block Corvette can go for over $100K in the right market, so to compensate the client’s other kids for not getting the Corvette, the client then reduces the amount of other estate items that he gives John. Ten years down the road, however, the client makes a wonderful trade of that 1969 Corvette and gets a 1962 Ferrari in the deal. Now, he’s made a wonderful trade and John will be even happier, right? Wrong. Because the will mentioned a “Corvette” and not a “Ferrari,” John not only misses out on the Ferrari, but remember, the client reduced his share of the estate due to fantastic gift that he’s not going to be awarded. John gets less , not more. A properly drafted will might say: “I give to John most most valuable automobile at the time of my death.” Or perhaps, “I give to John my Corvette or any accession resulting from the disposal of that automobile.” Get a lawyer!
Oral Wills
In many states, a person can make an oral or “nuncupative” will under the proper circumstances. However, I will not delve deeply into that arena since Texas has outlawed oral wills since 2007. In sum, do not delay drafting a proper Texas will because gifts made orally will no longer be recognized in a Texas probate court. In such circumstances, you will have to settle for an family settlement agreement, if possible, or perhaps a proceeding to determine heirship.
In sum, if you are contemplating a probate of a fill-in-the-blank will, and you are concerned, there may be options or alternatives available. As noted, a Family Settlement Agreement (or FSA) might be appropriate, or, if the will is declared invalid, then a proceeding to determine heirship may be needed. At any rate, we stand ready to assist in all these areas.