If you’re thinking about writing a will, NOW is the time to do so! Don't wait!
You don’t need a will. If your entire estate consists of . . . well, nothing, and you have no family or friends, then you’re off the hook. If you die with only debts then your debtors will be angry with you when you die and your estate is not probated...but then you won't care!
But if you have parents, a spouse or significant other, children, grandchildren, or friends, then you have reason to write a will. Couples who have children from a previous marriage need to have a will. Even if your only loved one is a pet, a church, or your favorite charity, you have reason to write a will.
If you die without a will, the State of Texas will write one for you. It’s called the Law of Descent and Distribution. Your estate is divided in a particular order between your relatives and their descendants. Settling the late Howard Hughes’ estate took several years and millions of dollars in legal, because no valid will was found. The lawyers involved in his probate made a fortune in the legal battle the occurred after his death.
Many people believe that if you do not have a will that the State of Texas will "take" all your assets. That is not true...but your legal fees might "eat up" all of your assets and then your heirs get nothing. Without a will, the legislature of the State of Texas has determined how your estate will be divided and that might not be the way that YOU wanted your assets divided. This is especially true if you have a wife and your children are from a different relationship.
Can you just go online and download one of those free or cheap wills? Not unless you’re willing to risk leaving complications for those you love. My advice is to let a lawyer handle the writing of your will. Be sure to hire an attorney that lives in the State of Texas! You need someone that knows Texas laws. (Hint - lawyers in California do not know Texas law so beware of those firms that advertise on television that are located outside of Texas.)
Attorneys are trained to ask the important questions most people never consider, such as:
• Who should I choose to be my executor? Do I need a backup executor?
• Do I need a testamentary trust for the grandchildren in case one of my children pre-deceases me?
• Should my life insurance be paid to my estate?
• Do I want to put words of advice in my will? Do I need to list possible guardians if I am in a long-term coma?
• How can my will handle retirement and pension payments to my named beneficiary?
The person making the will (called the testator if male or testatrix, if female) signs the will in the presence of two witnesses and a notary. Then the notary swears in the parties, who all acknowledge their signatures before the notary.
This "self-proving affidavit" is part of a Texas will and is good to go when offered in probate even if the witnesses and notary are also deceased. Unless a more recently dated will can be found, this will is admitted just as if God himself had sealed it. The named executor/executrix is qualified upon taking the oath of office. The only other court action required is the filing of an inventory and appraisement of the estates assets and liabilities. A complete probate procedure can be done in as little as 30-60 days.
So what about those living trusts you have heard about on radio and TV commercials? The fact is that these trusts can be great for persons of wealth, but they’re too complex and costly for most of us. In Texas, an estate of $1 million can be exempt from taxes. But if you have a large estate then you definitely need a competent Texas estate planning attorney to assist you into looking for ways to avoid taxes and to make sure that your money goes where you intend for it to go!
Of course, you can always write your own will in longhand, making certain there are no printed instructions or blanks to be filled out. This instrument (called a holographic will) must be in the testator’s/testatrix’s own handwriting, and it does not have to be witnessed. However, to probate it, 2 witnesses must testify, under oath before a judge, that they are familiar with the deceased’s handwriting and that this will is written in that handwriting. Those witnesses cannot be related to the deceased nor can they be beneficiaries in the will.
I have heard of an attorney probating a woman’s holographic will in the State of Texas. She had left everything to her husband, but she omitted some important paragraphs -- such as appointing an executor, and made no mention of waiving the executor's bond. Her "free" will required dragging 2 neighbors to court to swear they recognized the woman’s handwriting. Then, the judge had to appoint the husband as administrator, without bond, with the will attached, so that someone had the authority to settle the deceased’s financial affairs. It required a lot of work for the probate attorney so the legal fees were higher then they would have been if she had done the will correctly. She saved money initially -- but her husband had to pay more to fulfill her wishes.
In another example of what not to do, another probate attorney tried to probate the will of an professional man who had figured he could save a little money by using a form bought at the office supply store. In the will, he left everything to his wife and appointed her to be his independent executrix. When I presented the will to the judge for approval, he required the wife to post a bond (a costly insurance premium) unless her three grown children would agree to sign some additional paperwork. As often happens, the children would not sign the necessary paperwork to help mom, and a bitter family feud ensued. Lots of money went to lawyers to handle this unnecesary family feud. The man's estate was greatly diminished and his heirs received much less than they had anticipated.
Yes, the settling of an estate can be a nasty business, rife with unexpected problems. Do yourself and your loved ones a favor --see a lawyer and get that will written soon.
The State of Texas makes probate fast & easy IF you do it the way that the Texas legislature requires. If you don't follow "the rules" set out by the Texas legislature, then probate is s-l-o-w and expensive. So please consider talking to a probate/estate planning attorney NOW to make sure that after you pass that your heirs don't have to go through extra hassles and grief to make sure that your wishes are followed. It is very kind and thoughtful act to do for your family. Don't wait -- do it now then put it away for 5 years.
Wills should be reviewed every 5 years to make sure that they still contain your wishes. People are born or die and sometimes a will needs to be changed as your life changes.
As I tell people, you live in the City of Houston and you drive on the freeway -- YOU NEED A WILL NOW!