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Frequently Asked Questions About Will In Texas

Do I Need A Will?

If you are asking this question because you have heard (on the radio, most often) that a trust may be better than a will, then please see the section on living trusts, below.

On the other hand, if you are wondering if you own enough to justify even discussing with an attorney the need to draft a will, then ask yourself these questions: Do I own any real estate? Do I have minor children? Do I have family members who could conceivably disagree on disposing of my property? (experience shows that the potential for disagreement becomes 100x more likely upon the death of a loved one) Or, perhaps, you may ask yourself whether, upon your passing, you may have a claim against anyone for a debt? (if you are killed in an accident then you will have such a claim)  In short, if the answer to any of these questions is “yes”, then my answer is also “yes,” you need a Will.

Probating a will is how the estate is judicially confirmed whereby the Decedent’s 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.  This means that more of your estate will go to lawyers, appraisers, court administrator and possibly accountants; and less of your property goes to your heirs. An attorney-drafted will can avoid a lot of costs and time delays later.

As noted above, even if you do not own any substantial property, I would still recommend a Will for three reasons:

  • First, family members often react unpredictably to death, and lasting feuds have begun over possessions worth only a small amount. Many of these arguments could be stopped before they began if everyone could see a document where the deceased spelled out in writing exactly what they wanted to be done with their assets.
  • Second, circumstances do change. You may have more at your death than you realize. For example, if you were to be killed in a car accident, then your estate could have a claim against the other driver which might be worth a substantial amount. Similarly, at some point later, you could inherit funds, win the lottery, or purchase a small recreational property—all of which will increase your estate’s value. Thus, 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. Like an insurance policy, if you have one, and don’t need it, there are few negative consequences. Note too: 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 the will, and there no court appearances required.”

Are Online Will Drafting Programs And Will Forms Valid?

Obviously, we have not reviewed all of the online programs available. However, many programs that say “valid in all 50 states”, do, in fact, produce a will that is valid in Texas. But being valid is not the same as being “right.”  There are several reasons why I do not recommend using them.

  1. Texas has a very good probate system, or, as I some often say, “Texas is a great place to die.” What is meant by this is, in most circumstances, if you are taking a will drafted by a Texas attorney through the Texas courts, then the cost and time involved are relatively low. Usually, you only have to go to court but 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 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 to 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 minor’s parents or the best way to leave property to your child and ensure it will not eventually become considered community property in a future divorce.
  4. Moreover, there is a substantial chance the form itself 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.  For example, a fill-in-the-blank form is often held to be void.
  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?’

Can I Write My Own Will?

Yes, but do not be encouraged by this answer. A law professor once pointed out that the law also allows you to remove your own appendix, but 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 a specific meaning. In addition, most competent attorneys update their forms regularly based upon changing laws, new court cases, and the attorney’s own experience.  These forms are NOT the same as the online forms that tempt you to forgo an attorney.  They require legal skill and analysis in completing.  In addition, I find that most of my clients are not aware of all the issues they should address when drafting a will. The chances are great that if you write your own, you could leave something important out, or that it may have consequences which 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 will but can relate a story to you about a woman who drafted a will which gave everything to her husband. Easy enough, right? She was also careful to follow the requisites of law for the drafting of wills. The whole thing looked very professional. But there was one problem: her husband died before her and she didn’t address that possibility in her will. In sum, she died without a will.”

Is A Living Trust Better Than A Will?

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, then you probably prefer your property to pass through a living trust. But 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 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 costlier 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.

Take this away from us if you take anything.  A trust only possesses the property placed into it.  If you fail to put the property into the trust, then it does not pass through the trust, it passes through the will. And if you have no will, well then. . . .  Here’s an example of this problem with our dear friend, John.  John created a trust.  He put his house, financial assets, and even his personal property into the trust.  Later John sold his house and bought a new one, but on the way home from the closing, John was struck by a sleeping driver in an oil tanker truck.  And John’s trust?  It doesn’t own the new house because John didn’t consider that when he sold the old home.  And the multi-million dollar claim against the oil company?  Yeah, that’s not in the trust either.  John needed a will.”

Are Oral Wills Valid in Texas?

Until September 1, 2007 oral wills (called “nuncupative wills”) were allowable in certain circumstances. A person on his or her deathbed was capable of dictating orally a will which the courts would recognize after death. Today, oral wills are not accepted in Texas.

Consequently, as we age, and as we accumulate assets, it becomes increasingly more important to create a will in order to properly dispose of our probate estate.

Some, feeling that they already understand the mechanics of a will, attempt to draft their own document to dispose of their estate property. Others, on the other hand, may be tempted to use “one-size-fits-all” online legal resources for creating a will. The problem with each of these approaches is that you never know what you don’t know. You might draft a will which may be acceptable in one state, but which may cause your loved one’s serious problems in another.

An example of this is those fill-in-the-blanks wills which many are tempted to use. They may indeed work for you, if properly notarized and witnessed. But what if there’s an issue with the witnesses or perhaps with the notarization? Were the legal requirements for witnessing a will properly explained to you? Were they followed? Similarly, if not witnessed properly—or perhaps not witnessed at all—then is it possible that the will might be admissible as a “holographic will?” A holographic will is a handwritten will. But there are many rules involved in making an acceptable holographic will. For example, it must contain only the handwriting of the testator and must also be signed by the testator. A fill-in-the-blank will sometimes won’t pass even that test. Moreover, a will must contain adequate testamentary language which some handwritten wills might fail to observe.

In short, it’s easy to avoid using an attorney instead of paying up front and then spending valuable time discussing your needs. But a wise professor once said, “Yes, you can draft your own will; but you can also perform your own brain surgery—I wouldn’t advise either.”

Since the purpose of a will if often to create peace of mind, then it’s important that you have a competent attorney draft your will and thereby provide you with the peace of mind you need to focus on what’s really important. Life.

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