There are 7 essential things that you must put in your Will to make sure it has a quick and clean probate. They are listed below, along with cautionary notes about what can happen if you leave these critical elements out of your Will.
- Name all of your family members. If you do not have a section up front identifying your family (and that can include family by choice as well as by blood), courts likely will make your executor do a lengthy and expensive determination of heirship to identify your family, prior to the Will even being addressed. Additionally, if you fail to include family members (whom you may, quite reasonably, want to forget about), said forgotten fam have grounds to challenge the Will on the basis that you clearly were not of sound mind, since you forgot your own family members. And sound mind is one of the necessities for making a valid Will; you don’t want your Will invalidated on the alleged basis that you were not of sound mind, but in some stage of dementia.
- Name specifically anyone you want to exclude. In the same section where you identify your family, be sure and specifically name any relatives that you do not want to receive part of your estate. You only need to specifically exclude those who would inherit from you in the absence of a Will (spouse, children, parents, or siblings). If you don’t exclude such relatives specifically, and there is a problem with the Will, they may end up getting a share of your estate even if they were not named as beneficiaries. Don’t let a not-so-beloved relative get the last laugh.
- Name an executor. And preferably two backups to your first-named executor. If you fail to name an executor in your Will, or if you name one, but that one predeceases you, those who would inherit from you will need to choose one by agreement. That is easy when there are few to agree and they are all agreeable. But where you have blended families or estranged relatives, this makes for a prime opportunity to rock the boat, or just plain obstruct execution of the Will. The court could appoint someone where the family can’t agree, but that could engender extra fees, delay, and paperwork, and limit the freedom of the family to deal with estate property.
- Set up an independent administration, provide for service without bond, and use the statutory language regarding inventory et al. You do not want to set your family up for a dependent administration, where every step of administration and execution of your Will must be approved by the Court, and bond must be posted. The administrator would have to file annual accountings, and would be entitled to a share of the estate, 5% or more, for fulfilling their duties. An administrator is also in the position to foil the waiting beneficiaries of the estate and delay distribution of the estate by, for example, changing attorneys at every opportunity, waiting for the dates on delinquent tax letters to pass, and being unresponsive and failing to provide information to attorneys. While some courts will recognize your intent if you simply state that you appoint someone as your independent executor to serve without bond, some courts are not reasonable. So be sure and include the statutory language stating “that no other action shall be had in the probate court in relation to the settlement of my estate than the probating and recording of the will and the return of any required inventory, appraisement, and list of claims of my estate.”
- Make sure you have a self-proving affidavit as part of your will. Texas does not actually require that your Will be notarized in order to be a valid Will. But if your Will is only signed and witnessed, it is an “attested” Will and not a self-proven Will, and in order to prove it up in Court, your executor will need to have a witness to the Will testify in Court as to the circumstances of signing the Will. This seems easy, right? But if 20 or 30 years have passed since the Will was signed, good luck locating any of the witnesses, if they still survive, and getting them to testify. We have on occasion found such witnesses, and some have been good and caring souls who have stepped up. But in this busy world, even if a witness is otherwise well-intentioned, it is much easier to dodge this task than not. A self-proving affidavit allows you to prove the will up in advance, by following the statutory language, and that affidavit can be added up to a year after the initial signing of the Will. In this time of coronavirus lockdown, it is one of the options for getting a Will in place sooner rather than later. Do your Will now, and add the self-proving affidavit after the lockdown is lifted.
- Make sure everyone signs the Will in front of a notary after the notary has asked the questions of a proper signing ceremony. There are various elements that must be established before the Will can be considered validly signed, witnessed, and notarized, such as that the person making the Will is of age and of sound mind. Make sure that all these bases are covered, so that in the event the Will is later challenged by a disgruntled relative who did not receive as much as they wanted under the Will, that challenge will fail. An estates planning attorney will take everyone through the proper sequence of questions before a Will signing.
- Keep the original signed, notarized Will in a safe place and make sure your Executors know where that place is and can access it. If your executor does not have the original Will, the Court will presume that the Will was revoked or destroyed, in other words, that there is no Will. Especially if someone is trying to probate the Will more than 4 years after the maker of the Will passed away, the probate will follow the steps that would be necessary if there was no Will at all. This can result in thousands of dollars of additional probate costs and several extra months of delay, a real problem if the family needs access to the estate to pay bills. So, keep your Will in a safe, but accessible, place (not a locked safe deposit box for which no relative has the key). Make sure that your executor and alternate executors know where that original Will is located before you pass away.
There are some other things too that you will want to put in your Will: guardians for children under the age of 18 (otherwise, your survivors face a court proceeding to name a guardian); trusts for children under 18 who inherit (otherwise, their gifts may have to chill in the Court Registry until the kids turn 18, and even then, there is a not-so-fun paperwork process to try and spring the funds from the Registry); and trusts for any incapacitated beneficiaries (which incapacitation can sometimes happen if your Will has been in place many years).
It is always tempting to save a few dollars and try and DIY your Will, or download a free Will template online, or buy a “Will kit” at an office supply. But we have many probate clients who could tell you about the lengthy delays, extra expense, and agony such Wills will cause for your survivors. Sometimes these DIY Wills are worse and more costly than no Will at all. These one-size-fits-all Wills inevitably fail to include language necessary in Texas, and almost never get signed, witnessed, and notarized properly. Others are signed and witnessed but not filled in. It is relatively inexpensive to have an actual estates planning attorney do a proper Will for you, and that will save thousands of dollars in the probate phase.
On the other hand, you will not have to suffer these consequences of a poorly drafted or executed Will yourself. So, if you feel your relatives need a run for your money, by all means, DIY. Only you know if they deserve it.
By Jen Green, Burch Law
