BIGGEST MISTAKES IN DO-IT-YOURSELF WILLS

It is tempting to believe that drafting your own will is simple and that it’s unnecessary to involve an expensive lawyer in the process.  Please keep in mind that drafting a Last Will and Testament is only half of the equation.  The other half is probate, and you often do not get a choice to go without a lawyer when creditors or other parties seek to have your home-grown Will thrown out.

Probate historically involves lawyers; and for every lawyer out there, there is a case making common sense proclamations in your Will confusing and counter intuitive.  The purpose of law school is to inform lawyers what others have done to make an otherwise easy to understand Will so confusing that it cannot be probated.

Mistake Number One – Omitting A Black Sheep

Clients will often tell me that they have several children, but also that they don’t want the family’s black sheep listed as a child, “since they are not going to get anything anyways.”  Or perhaps, they might say, “We don’t even know where so-and-so lives or even if he’s alive.”  This is a potentially fatal mistake.  What you didn’t learn in law school is that to draft a valid will, you must know “the natural objects of your affections.”  This largely means children.  If you only list in your Will four of five children, it can raise the argument that you were not sufficiently aware of the natural objects of your affections and so the Will must be thrown out.  While a Will does not have to give all children everything, it is critical that the omitted children be listed so that the judge will not think your Will is too defective to probate.  If you omit a child, do you also want to omit that child’s own children—in other words, do you want to omit your grandchildren too?  These questions are important to address.

Mistake Number Two – Witnesses and Procedure

A Will is not acceptable for probate by default.  One must show the Court that the signing ceremony was properly conducted and that proper procedures were used.  For example, in general, each witness to a Will must be physically present in the room, and observe the signing by both the Testator and by the other witnesses.  If not, then the Will may be considered too defective to probate—especially where there is no notarization of the signatures.  Another consideration is whether a witness has an interest in the estate.  If a witness receives anything in a will—no matter how small—then that person cannot serve as a witness.  Another issue which arises is whether the signatures were all executed at the same time.  The witnesses and Testator should sign the Will in a single ceremony, at roughly the same time.

Mistake Three – Lack of a Self-Proving Affidavit

While failing to have a self-providing affidavit may not be fatal to a Will, having one is the best method to save thousands of dollars and enormous heartache.  Texas has a basic form for a self-proving affidavit, which is not always found when using many of the online Will generators.

Mistake Four – Failure To Include A Rest and Residue Clause

Even lawyers don’t get it right all the time.  Therefore, the best safety valve for a mis-drafted Will is to always include a “rest and residue” clause.  A rest and residue clause is a provision which kicks in if, for any reason, the other dispositions of the Will fail to allocate property to the intended beneficiaries.  The failure to have such a clause might be considered malpractice if, by omitting it, since the Testator’s intentions are frustrated.

Mistake Five – Creating A Holographic Will

A holographic Will is a Last Will and Testament drafted in the handwriting of the Testator.  In Texas, there are several landmines involved in creating a valid holographic Will.  If you step on even one of these landmines, the whole attempt can blow up after your death.  While the foregoing-provisions also apply to holographic Wills, there are additional issues which the layman might not fully understand.  For example, a holographic Will must contain ONLY the handwriting of the Testator—nothing else.  Second, it must contain a written date.  Third, it must be signed by the Testator.  Texas is a bit more stringent on these holographic will requirements than most states are.  Only in an emergency should a holographic Will be attempted.  There is a very interesting case (not in Texas), where a Testator was working on his tractor.  The tractor fell off its jackstand, crushing him.  As the Testator lay dying, he took his own blood and wrote on a wooden slat of his barn, “All To Wife.”  This slat was later removed from the barn and entered into probate as a valid holographic Will.

While it may be tempting to save money by writing your own Will, it is critical to have a competent attorney help you avoid the pitfalls that could undermine your wishes in drafting your Last Will and Testament.