Why Everyone Needs a Will
by Ida Gwendora Stewart
“I don’t own anything. Why would I need a will?”
A will names your heirs.
In a thorough will, you name all of your children, and (grandchildren) including those born (or adopted) outside of marriage (yours or your children’s marriages). Then you state how much, if anything, you are willing to give each one.
When you name all of your heirs (even those you plan to “disinherit”), you make it less likely that anyone can come “out of the blue” and try to convince a judge that you conveniently forgot about him or her.
If you do not have a will, you die “intestate” and there is no document that tells the court whom you choose to name as your executor and your heirs or what you wish to give anyone. Your family has to go through an heirship proceeding to determine your heirs. The judge will name someone to serve as your estate administrator to split up your assets if you have more than $50,000 worth of valuables. Your car, your music collection, your furniture, and an account or two could easily put you over the small estates limit.
If I Can Have a Trust, Can I Avoid Probate?
“I heard that I could create some kind of trust and not have to go through probate.”
That’s true if you go through ALL the steps to set up such a trust correctly initially and then remember to repeat those steps as your assets change.
“Can’t I just tell a couple of good friends who gets my stuff if I die first?
Not All Wills Get Probated
Yes, you could do that, but, no one has to pay attention to your good intentions unless you literally are on your death bed.
To have a valid will that can be probated, you need a written document that demonstrates testamentary intent, is signed by you, and is witnessed by two competent persons who are 14 years of age or older.
In Texas, you also should have another document attached that we call a “Self-Proving Affidavit.” It is a statement signed by you and your witnesses in front of a notary stating what you have just done and that you were competent when you did it.
“I hate thinking about death – mine or anyone’s. I can’t believe I am asking these questions today. What if I never make it into my lawyer’s office to have her make me a will? Can’t I just download one from the internet or tear one out of one of the books called “Do It Yourself Texas Wills?”
You could and it might be fine and it might not. A book that was written a few years ago or a website that has not been updated may not have the latest changes in Texas or Federal Law. Estate Planning and Probate attorneys strive to stay current and are required to spend several hours each year improving our understanding of the legal issues that concern you and your family.
“I heard I could just scribble something on a piece of paper and that could be my will.”
It could, if it’s done right.
“So, how will I know if it’s done right?”
Ask a lawyer.
“I just need a simple will. Why should I pay more than a few dollars for one?”
You don’t have to do anything. We lawyers sell our time and expertise. For instance, it takes our office about three hours to prepare a “simple” will. I typically spend about an hour meeting with the client going over the individual’s various needs, an hour reviewing and revising the basic documents and an hour going over the documents with the client on signing day. Then my staff comes in to witness and notarize the documents in the special signing ceremony. If there are more than one or two assets (house, car), children or parents with special needs, or tax considerations, crafting and executing the right set of documents take more time.
If a marital partnership is involved and the two wills are almost identical, then I usually reduce the total fee.
Complicated Families Need Complex Wills
Mirror wills are not appropriate if the wills involve blended families, especially if there are two sets of adult children scrutinizing Mom or Dad’s every move. There are two different documents and there is little that can be duplicated. Blended families, multiple marriages and divorces, children who are jealous of one another, and family members who have competency issues (not necessarily documented in court) are all reasons to have your end of life documents in order.
Special Needs Trusts
In addition to a will, I strongly recommend special needs trusts for children or parents who are disabled in some way.
To facilitate transfers if your own mental or physical health falters, or prevent family property from being divided between multiple (and often less interested) heirs, I recommend family trusts with you serving as the trustee for as long as you are able.
Both wills and trusts can have clauses leaving set amounts to the non-profit organizations of your choice, such as your church, a school, or the local animal shelter or food pantry.
Give Via Codicil
If you already have a will, you can add a codicil that names your church as an additional beneficiary.
Give Via An Amendment
If your property primarily is passing through one or more trusts, that you have already created, you can check with a lawyer about amending the existing trust or carving out a special trust just for the purpose of making a special contribution.
I try to have everyone who meets with me about estate planning or who is getting a divorce, to leave my office with at least a basic will. Often that will be a holographic will – one that is entirely in the person’s handwriting and meets certain other criteria. That will is a placeholder, especially if we also execute a self-proving affidavit, that serves until our office can create a formal will set. If you don’t have time to do that today, do make plans to do at least that as soon as possible.
Other Documents Needed
Included in the will “package” are several other important documents: A Statutory Power of Attorney, Designation of Health Care Agent, Living Will or Physician’s Directive, and a Designation of Guardian for you, as well as a Designation of Agent for Burial. We also prepare whatever trusts you need.
Will you Handle The Probate?
There is no requirement that your heirs hire the same lawyer who prepared your will to also handle the probate. But if asked, I would be honored to do so.
What Do I Need to Bring To Your Office?
Bring your concerns and wishes. I will listen closely to what you tell me you want and then select the best instruments, paragraphs, phrases, and words to allow us to carry out your wishes.
Who Should I Name As My Executor, Trustee, And Other Important Person?
The people you ask to serve in these roles are your fiduciaries. Each one must be someone you trust. However, someone who would handle your money well may not be the same person who should oversee the daily care you receive while you are ill or otherwise unable to properly care for yourself.
Should I Bring My Whole Family to My Appointment?
No. The information you share with us as your attorneys receives special protection under the law and is “privileged” and confidential. If someone else is present in the room, that special attorney-client privilege may be “waived.” Unless you truly plan to prepare the “mirror” wills we mentioned earlier, plan to meet with us without any other family members or other interested persons so that you can answer our questions freely.
An estate plan is a type of insurance policy. The odds are that you will need to “cash” in the policy at some time. A carefully thought out estate plan allows you to receive the assistance you need when you are least able to ask for it and will allow those who care about you to move forward in handling your estate—whether large or small—without undue delay.
I hope you will take the time to put together an estate plan that includes a will and other documents and that you will allow our firm to assist you in taking the steps to better secure the future.
© 2009, Ida G. Stewart – All Rights Reserved
The information provided above does not serve as a substitute for consultation with an attorney. Specific legal issues, concerns, and conditions always require the advice of appropriate legal professionals.