Writing a will is hard. So hard that some lawyers spend the entirety of their career and practice focused on helping others draft a bulletproof will. In order to save money, many people try to write their own will or turn to prefabricated online forms in lieu of a personalized will. This is risky, not only for the will-writer, but also for the friends and family who the writer intends to benefit from the will. Trying to save a few hundred dollars now can cost thousands or even tens of thousands of dollars post-death in cleaning up a botched, do-it-yourself will.
We’re gathered together today to give our top 10 reasons why you should always turn to a lawyer to help write your will. This advice could save you and your family from the unwanted, damaging misery of a self-written will.
We talk a lot about executors in this blog. And for good reason: they’re really important. Generally, when there is a will, the executor is the person named in the will to secure and then distribute assets in accordance with the terms of the will after the testator (the person who executed the will) dies. When there is no will, the executor has another name, but in this blog post we are focusing on having a will.
Texas allows for a streamlined, less costly and less time-consuming probate process called an Independent Administration. In an Independent Administration, the executor (who is then called an Independent Executor) does not have to get permission from the court to perform his or her duties, but rather, may act independently of the court. For example: an independent executor does not have to get permission from the court prior to selling real estate owned by the deceased so that the proceeds can be split amongst the beneficiaries of the will.
It would seem like a good idea to require the executor to obtain permission from the court before taking any action, right? In some circumstances, you would be right. However, requiring court approval and oversight of all actions taken by the executor makes the process of probate take longer and increases attorney’s fees. The vast majority of estates do not need this added protection, and, often, the minimal size of the estate does not justify the extra expense.
If a will specifically states that an executor is to serve “independently,” then the executor gets to use the less costly and less time-consuming probate process (i.e., Independent Administration). However, many do-it-yourself wills fail to properly address this issue.
If you write your own will and you fail to state that the executor may act independently, then you may have inadvertently opted for the more expensive and time-consuming “dependent administration.” The court will appoint your executor as a “dependent administrator” who must seek court approval for all transactions that take place within the estate. This mistake could result in your loved ones receiving less of an inheritance due to the increased cost of the process.
In the world of Probate, a bond is like an insurance policy to protect against the executor running off with the money. Sometimes bonds are a good thing. However, typically, when the testator has named someone as their executor in their will it is because the testator trusts that person, and the extra expense of a bond is usually not needed. However, the law, by default, requires that an executor post a bond before being appointed unless the will specifically states that the executor doesn’t have to.
Like an insurance policy, bond’s cost money. The company issuing the bond also requires that the executor submit themselves to a credit check. It is entirely possible that a perfectly good executor (i.e., trustworthy and reliable) may not have good enough credit to be approved for a large bond. If the named executor cannot be approved for a bond then they can’t serve, and someone else will have to be appointed.
Waiving the bond requirement for the executor is an important detail which is often overlooked by people who write their own wills. This oversight may lead to the additional time and expense associated with securing a bond, and can lead to someone other than the named executor being placed in charge of the estate. This person may be someone the testator would not have wanted in control of their loved ones’ inheritance.
Do you speak legalese? A lot of people who decide to pen their own wills don’t, and that can make the project cumbersome and frustrating. Turning to online forms can take some of the frustration out of the process. Sometimes referred to as “cut and paste” wills, these forms borrow language from a number of sources, but also may exclude valuable information.
An accidental keystroke with an online form could erase some very important parts of the will — parts you do NOT want to be missing. The most insignificant looking paragraph can be incredibly important. Deleting a single phrase can sometimes change the entire distribution of the estate. And believe us when we say that it’s never in a good way.
Having a will is about making sure your loved ones are taken care of after you’re gone. A lawyer has the training and expertise needed to recognize when you’re being taken advantage of by someone close to you. Good estate planning lawyers take precautionary steps like speaking to you alone about your wishes so that you can say what you really want without the person who drove you to the appointment trying to sway you. An estate planning attorney will also have you sign your will in their office so that the pages cannot get switched unbeknownst to you.
Did you know that you may possess assets that will not pass in accordance with your will? We call these non-probate assets and they’re things like life insurance, Individual Retirement Accounts and 401(k)s which pass according to a beneficiary designation you have signed. Non-probate assets also include bank accounts which are set up as joint tenants with right of survivorship or payable on death. Writing your own will, you may not know how to identify non-probate assets or that the terms of the will you are drafting will not control who these assets go to after you die without proper coordination.
Witnesses are people who watch the testator sign the document and, thus, assist in establishing the validity of the will. Without witnesses the entire will could become invalid, but did you know there are restrictions on the kinds of people who can be a witness to a will? For instance, is it ok for your son to be a witness to your will? Is he over fourteen? If not, then he’s a no-go as a witness. Is he a beneficiary of the will? Probably, and, as a beneficiary, he is not an appropriate person to verify your signature. Having an inappropriate witness can be the equivalent of having no witness and can lead to the complete nullification of the hard work you’re doing to self-write your will.
More often than not a will must be signed in two places. However, depending on how the will is drafted (or what kind of forms you decide to download off the internet to draft your will) you may not need two signatures. Furthermore, are you signing the will or the self-proving affidavit that attests the validity of the will? And do you know which parts of the will your witnesses need to sign? Not signing the will correctly could completely invalidate the will.
Congratulations! You’ve written your own will. You’ve checked and double-checked it. You’ve crossed every t and dotted every i. You were diligent and left no stone unturned: you’ve got your beneficiaries, executors, trustees, guardians and the document is pristine! But wait, did you name alternate beneficiaries? Alternate executors? Alternate trustees? It’s possible that by the time you pass away the person named as the executor has also passed — or maybe there’s an accident and you go together. Your will has to have a plan B and sometimes even a plan C, D, or E. A lawyer can tell you exactly where you need contingency planning to ensure every worst-case scenario is dealt with in your will.
It’s not uncommon for people today to have at least one prior marriage in their life (if not multiple prior marriages). And if you aren’t personally on a second or third relationship, your executor, beneficiary, trustee or guardian probably is. Your lawyer can assist you with identifying people who could potentially be undesirable executors, beneficiaries, trustees or guardians if relationships change and help you to draft the will with language to eliminate their involvement in these circumstances. Accounting for these relationship changes is often overlooked in self-written wills and it can lead to undesirable results for your loved ones and heirs.
Do you know your great-aunt’s second cousin twice removed? A catastrophic event could wipe out everyone in your family (what we refer to as a “worst-case-scenario”) except this strange family member leaving them to inherit your estate. This remotely related person is what’s known as a “laughing heir” (i.e., laughing all the way the bank because they just got rich off of someone they never even met, namely, you!). Do you want a laughing heir inheriting the entirety of your estate? Without a properly drafted will, they might. In worst-case-scenario circumstances, most people would prefer to give their estate to charity or to an old friend. A good estate planning lawyer can help you to properly plan for worst-case-scenarios and avoid the laughing heir.
We always recommend you seek the counsel of an experienced estate planning attorney if you have any questions about the estate planning process or writing a will. A qualified estate attorney will guide you toward the right choices for your family and everyone involved.
At Romano & Sumner, we pride ourselves on our ability to assist our clients in navigating complex legal processes like estate planning and will construction. If you have any questions, please feel free to contact us today.
Romano & Sumner, PLLC