Over 29 years of practice, I have represented clients across the spectrum from young couples starting out to retired folks with substantial assets. Interestingly, age and experience seem to have no material effect on one of the most important decisions confronting clients – young and older – should I have a will prepared?
Why Do Clients Put Wills on the Back Burner?
Perhaps a psychologist or sociologist would be more prepared to answer this question. The likely answer is that all of us are not thrilled with the prospect of our own demise. Also – it is certainly something we can put off until tomorrow – next week – next year. Unfortunately, this decision and its floating rationalization may put off this simple and critical planning until it is too late.
What are the Consequences of Not Having a Will?
Unfortunately, the consequences could be most severe. Remember, the purpose of a will is to set forth with clarity your decisions with respect to distributing assets of your estate. In the absence of a will, your estate distribution will be determined entirely by Texas state law as it would be deemed an “intestate” estate meaning distribution of your assets based on Texas law, not your own choices. For example, if you wanted your assets to be distributed to one sibling vs. another, your wishes would NOT be honored by the Court in the absence of a will. This can become particularly problematic if such failure to provide allocation leads to conflict or even litigation between family members. Believe me, this happens frequently in my practice. Keep in mind that an oral promise to distribute your assets to a particular child is not enforceable even in the presence of a witness.
Additionally, it will cost you more in the way of attorneys fees to handle the disposition of an estate in the absence of a proper will. The Texas Probate Code provides rules and procedures which must be followed in an intestate situation and the process can be complex and expensive depending on the size of the estate and whether a battle between beneficiaries is anticipated. Unfortunately, emotions and family dynamics being what they are, siblings often hire separate attorneys and ….well…. “lawyer up”. I have seen battles go on for two or more years which easily could have been avoided if a simple will had been drafted. That’s one of the best reasons to have a will prepared. It is particularly tragic to watch finite assets evaporate during a prolonged court battle. Guess who comes out winning in that situation? You guessed it! And… don’t go there!
Isn’t it Expensive to Draft a Will?
It shouldn’t be! The answer really depends on the size of your estate. Most estates are not elaborate and the legal services are not complicated or expensive.
Can I Draft my own Will?
Yes – but I would think twice about that. Texas law requires that wills conform with specific provisions under the Texas Probate Code to be valid and enforceable. Failure to follow even one of these requirements could very well invalidate your will. As this may be the most important document you ever execute, hire an attorney and do it right! Definitely avoid the web and online legal services which may not provide competent advice. Best to find a lawyer you have confidence in who resides in your town.
How Specific Can my Estate Decision Be?
Extremely. You can and should be very specific as to who gets a specific asset in the estate and the amount. For example, if one of your children is the caregiver, you can decide that she gets the lion’s share of the estate. If one of your children would handle inheritance irresponsibly, you can place conditions of the receipt of assets such as the amount and even the presence of a third party to OK spending decisions. Same situation with setting up a college trust fund or any such mechanism.
Can Probate be Avoided?
Absolutely. Certain assets can be distributed without the need for a will. However, this is a confusing topic and it is recommended that you obtain legal advice.
TAKE A DEEP BREATH AND GET IT DONE. DON’T PUT IT OFF ANY LONGER!