Q1. Do I need a will?

Answer:

If you are asking this question because you have heard a trust may be better, please see the section on living trusts, below.

If you are wondering if you own enough to justify seeing an attorney at all, ask yourself these questions. Do I have any real estate? Do I have minor children? Do I have family members who sometimes disagree? Do I have valuable property of almost any kind? If the answer to any of these questions is "yes", then my answer is also "yes". You need a one.

Probating a will is how property is transferred from one person's name to another. If you do not write a will, the State of Texas has thoughtfully written one for you. The catch is, even if you agree with the State as to how your property should be distributed, the lack of one means that under most circumstances, the Court must oversee the distribution of your property, which means that more of your estate goes to lawyers, appraisers, court costs and accountants, and less of your property goes to your heirs. An attorney-drafted will can avoid a lot of costs and time delays later.

Even if you do not own any substantial property, I would still recommend a will. Why? Three reasons.

First, family members sometimes react unpredictably to death, and lasting arguments are begun over possessions worth small amounts. Many of these arguments could be stopped before they began if everyone could see a document where the loved one spelled out in writing exactly what they wanted done with their small property.

Second, circumstances change. You may have more at your death than you realize. If you were to be killed in a car accident, your estate could have a claim worth a substantial amount. Similarly, you could inherit funds, win the lottery, or purchase a small hunting property. There are many reasons why heirs end up having to go to probate court despite someone being sure they did not need a will.

Third, a simple weighing of consequences argues in favor of a will. If you need it and don't have one, that lack could cost your heirs thousands, or even hundreds of thousands of dollars, depending on the circumstances. If you have one, and don't need it, there is no negative consequence. Texas law does require that the will be filed with the Court, even if it is not probated. However, there is no fee to simply file, and no court appearance, or additional action is required.

Q2. Are those will programs and forms for sale to non-attorney's valid?

Answer:

Obviously, I have not reviewed all of the programs available. However, many programs that say "valid in all 50 states", do, in fact, produce a will that is valid in Texas. There are several reasons why I do not recommend using them.

1) Texas has a very good probate system, or, as I sometimes say, Texas is a great place to die. What I mean by this is that, in most circumstances, if you are taking a will drafted by a Texas attorney through the Texas courts, the costs and time involved are minimized. Usually, you only have to go to court once. You do not need any of the witnesses to go to court with you. After you file an inventory and appraisal, there are no other actions which require court oversight. I have not yet seen a will program, or forms, which are designed to take advantage of Texas probate laws. Which means that if you use the most commonly available legal drafting programs or wills forms, your heirs could end up paying almost as much for a probate as if you had not written a will at all.

2) Many people do not fully understand what they are signing. Although there are exceptions, most non-lawyers cannot tell the difference between leaving property to their descendants "per stirpes" or "per capita". Many people are also unclear about the difference between an executor and a trustee. I have had clients bring in forms after the death of a spouse or parent, and even a quick look reveals that the loved one did not understand what they were filling out. That leaves the survivors and the Court in the difficult position of trying to follow instructions which clearly do not make sense. It is also an invitation for a will contest.

3) The forms are written to cover only the most common situations, and in these days, fewer and fewer families fit the "most common" mold. Most forms will not address, for example, how to leave property to a minor where you have a strong distrust for one of the parents, or the best way to leave property to your child and ensure it will not eventually become considered community property, which would be vulnerable in a divorce action.

4) There is a substantial chance the form will be invalid. Even if the form which you select is a valid form, there is no guarantee it can be filled out and executed properly.

5) You may not realize everything you should be including. One of the greatest benefits of a face to face consultation with an attorney, is the opportunity for the attorney to discuss your personal situation, and point out things that you ought to consider. For example, if your child dies before you and your grandchildren are left to inherit, at what age would you want them to have access to their inheritance?

Q3. Can I write my own will?

Answer:

Yes, but pay no attention to this. I had a Professor who used to add that the law would also allow you to remove your own appendix, and that you should not attempt that either. While attorneys do "write" the provisions which specify your particular instructions and desires, virtually all attorneys begin with form language which decades of courts have held to have specific meaning. In addition, most competent attorneys update their forms regularly based upon changing laws, new court cases, and the attorney's own experience. In addition, I find that most of my clients are not aware of all the issues they should address. The chances are great that if you write your own, you could leave something important out, or that it may have consequences you do not intend. That being said, if you are simply not willing or able to see an attorney, and you are trying to decide whether you should write your own, or let your heirs and the State fight it out after your death, a self-drafted will is often better than nothing. Often, but not always. I cannot possibly list all the pitfalls to avoid in drafting your own, but I shall at least urge you not to use a computer. Write it in your own handwriting–every word. This will not guarantee that the one you write is valid, but it will greatly increase the possibility.

Q4. Is a living trust better than a will?

Answer:

There are some people who have a strong distrust of the probate system, and a dislike of courts. If you are one of these people, you probably prefer your property to pass through a living trust. Even if you are not, there are several reasons you may want to consider using one.

1) Avoidance of probate court. This is the most common reason I hear from people who come to my office asking about a living trust. If you live in California, New York, New Jersey, or many other states, this is an urgent concern. Probate in Texas, by comparison, is simple. If a Texas attorney drafts your will, Texas probate can frequently be completed in less than a month, if necessary, and for, by legal standards, a reasonable sum. However, some clients have had bad experiences with courts, or heard unpleasant stories, and want to be absolutely sure their heirs are not dependent on the Court. A living trust is designed to serve many of the purposes of probate, and is the first choice for clients who, for any reason, want to stay out of probate court.

2) Privacy. This is one of the most common reasons I find myself suggesting a trust. Probate records are public. If your neighbor is curious at your death, he can obtain from the court a copy of the inventory and appraisal filed by your heirs, and find out exactly what was in your estate. So can a disgruntled family member, which in turn sometimes leads to will contests. If you are a private person, and wish to remain so after your death, you may prefer to use a living trust.

3) Real estate owned in another state. Although Texas probate is usually straight-forward, if you own real property in another state, your heirs will also need to file ancillary probate in that state. This can sometimes be messy. When real estate is owned in another state, it is usually my recommendation to form a trust to own the real estate, so that ancillary probate can be avoided.

There are other situations in which a living trust may be advisable. However, I usually do not recommend them unless there is a pressing reason to have one. This is because they are more costly to prepare than a will. Although most people wonder if they should have a living trust instead of a will, the correct question is should you have a living trust in addition to a will.

Q5. Why would I have a will if I have a living trust?

Answer:

You have a will in addition to a living trust in case there is property inadvertently left out of the trust. Even with careful planning, many people who utilize a living trust accidentally leave property out. This could be because they neglect to have everything retitled at the time the trust is created, or because property is gained after the trust is created, the person forgets to put the property in the name of the trust, or even because the person is not aware they have an interest in some property. A will should be drafted at the same time as a living trust, for many of the same reasons that I recommend a will for individuals with little or no property.

Q6. What is a Power of Attorney?

Answer:

A power of attorney gives another individual the right to act for you. This can be a very powerful document, and can cover many purposes from allowing your son to deposit your social security checks and write checks to pay your bills, to allowing your spouse to sell your homestead without you having to be present. A power of attorney is needed when an individual travels a great deal, or when they are incapacitated. While it is usually possible to plan ahead for travel, we rarely know in advance when a power of attorney can be needed to deal with incapacity. If you have an individual that you would trust to handle your financial affairs if you were unable to do so, I would urge you to execute a power of attorney in favor of that individual. Bolton & Bolton, PC does not charge an additional fee for a power of attorney if it is prepared and executed at the same time as a will.

Q7. What is a Medical Power of Attorney?

Answer:

A medical power of attorney allows you to designate who should be allowed to make medical decisions concerning your body in the event that you are unable to. Bolton & Bolton, PC does not charge an additional fee for a medical power of attorney if it is prepared and executed at the same time as a will.

Q8. What is a Directive to Physicians?

Answer:

You may have heard this referred to as a "living will". This is a document which specifies under what circumstances you would want life support to be discontinued. No matter which side you supported during the Terri Schiavo case, it is a tragedy that Ms. Schiavo did not execute a Directive to Physicians so that there everyone could ensure that her wishes were carried out, regardless of what they were. Bolton & Bolton, PC does not charge an additional fee for directive to physicians if it is prepared and executed at the same time as a will.

Contact Us

To get more information or to schedule an appointment with an experienced lawyer, please contact us in Conroe, The Woodlands or Huntsville at 936-435-1908 or Sugar Land or Stafford at 281-723-2791.