Part 2: Not All Wills Are Created Equal

By Lorie Burch, Owner & Founding Attorney of Burch Law

Should You Go to a Lawyer or Should You Do-It-Yourself?

It is a fact that the vast majority of people do not have wills or living wills. There are a number of reasons why we put off such important and essential planning. One reason is that people are intimidated by the thought of going to an attorney and the potential cost. So the “solution” is to do nothing or to go a “simpler” route by preparing wills themselves, either online or with computer software programs. While this alternative may be “better than nothing” in many cases, it is still a risk not to seek the counsel of a professional. Where on-line forms and will kits can address your concerns in a general way, a good attorney can make recommendations based on your family’s specific circumstances.

You have many options available to you that you will not know about or understand unless you have a competent attorney to advise you and explain such options. Detailed and specialized planning cannot be accomplished through online forms or will kits, nor can it be accomplished by filling out a form and sending it in to be prepared, even if it is being prepared by attorneys.

There are a number of questions that your attorney can guide you through, such as:

  • Do you want your 18-year-old child to receive his inheritance outright, or should a more mature person control it until he’s older?
  • What is the role of an executor and trustee, and who should assume the job?
  • What are the advantages and disadvantages of going through probate versus having a living trust?
  • How should you designate the beneficiary information of your assets, such as checking accounts, investments, life insurance or retirement accounts so that they do not conflict with your will?
  • Who should you designate to make medical and financial decisions on your behalf in the event you are incapacitated?
  • What qualifies as an “irreversible condition” and a “terminal condition” in your Directive to Physicians (living will)?

It’s Important to Have Texas Specific Wills and Living Wills

Texas has specific guidelines and laws that most online forms and will kits do not address. For instance, Texas allows for what is called an “independent administration” that allows an executor to carry out the wishes in your will essentially free of court interference. The only actions taken in court in an independent administration is the probate hearing, whereby the executor is appointed pursuant to the will, and the final filing of an inventory of the estate. If language requesting an independent administration is not in a will, then the default is for the court to supervise the entire probate process, which can be very costly and time-consuming.

Some Other Considerations

  • Your executor or trustee will have to post bond if your will does not specifically waive that requirement.
  • In Texas, the signing and notarization of the will is crucial and your will could be thrown out if it is not signed with the proper formalities.
  • Texas, like nearly all states, has specific guidelines when it comes to Directives to Physicians (living wills) and Medical Powers of Attorney and if those guidelines are not followed, your documents may be dishonored.

When you find out that your online form or do-it-yourself will kit was insufficient, it will be too late and your family and loved ones may be in the same position as if you had done nothing at all. The cost of doing no planning or not doing it correctly far outweighs the cost of the peace of mind you receive by careful and thoughtful planning.

Burch Law
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