Frequently Asked Questions Regarding Wills.

DO I NEED A WILL?

Yes.

The cost of a "simple" will (which is all most people need) will save, easily, 10 to 20 times the drafting fee in reduced probate costs. Texas law, as with most states, allows the estate to be probated easily and simply, if there is a will involved.

The main purpose of probate is to assure that, after someone dies, there proper debts are paid and the correct heirs receive the deceased's belongings. When someone dies without a will, every transaction is carefully scrutinized and many cumbersome safeguards are put in place to protect the estate. This results in a lot of expense.

For example, a bond from an insurance company must be purchased. Depending on the size of the estate, this could cost a few hundred dollars or, in a very large estate, a few thousand. If the person appointed to handle the estate (the "administrator") commits any improprieties, the bonding company must pay the amount lost.

Another example of the increased cost of no will, is the additional attorney's fees required. To sell real property in a "dependant" administration, the attorney must file an application with the court. Then a hearing must be held. Then the sale must proceed as ordered by the judge. Then a report of sale must be filed and an order signed approving the sale. All of this work requires hearings, drafting of pleadings, effort and delay.

A will, on the other hand, says to the court; "I have adequately safeguarded my estate, butt out". Frequently, the heirs of the estate are the same as the executor (for example, your spouse). Since the person is not going to steal from himself, no safeguards are needed. A properly worded will directs the court to require only the minimum work necessary (i.e. filing an application, oath, order, and inventory). This work can be done quickly, cheaply and efficiently.

Additional money can be saved because Texas law allows you to stipulate in a will that you do not want a bond, or appraisers. The savings can be substantial.

In summary, the large savings that occur come mostly from reduced attorney's fees. It's the classic tale of "pay me now, or pay me (a lot more) later". Saving money by not getting a will is kind of like a skydiver keeping his costs down by not buying a parachute. A lawyer may make $200-$300 for a will, but the additional fees for an estate (with no will) can generate thousands of extra dollars in fees (it's also a hell of a lot of work). That lawyer who's bugging you to make out a will really has your best interest at heart.

One half-hour meeting with a lawyer (to gather the information) and a final meeting to sign the will is generally all it takes. It's money well spent. Do it.

IF I DIE WITHOUT A WILL, DOES THE STATE GET MY MONEY?

No.

Only if you do not have any heirs that qualify under Texas Probate Code § 37, would the issue of your property "escheating" ever arise.

If you die without a will, Texas (in essence) writes one for you. For many reasons, some of which are discussed on this web site, you won't like the terms of the "will" that is written for you.

Texas Probate Code § 38 will pass title (after going through probate), without the danger of escheat, if any of the following are alive:

  1. A spouse or children
  2. Descendants of children
  3. Father or mother of the deceased
  4. Brothers or sisters of the deceased
  5. Descendants of brothers or sisters
  6. Kin of the father or mother
  7. Grandfathers or grandmothers
  8. Descendants of grandfathers or grandmothers
As you can see, it is very rare that someone does not exist that falls into one of these catagories.

SHOULD I DRAFT MY OWN WILL?

No.

The cost of a properly drawn "simple" will is low (less than $500 for a married couple). The financial costs if the will is improperly drawn is high. You do the math.

Most lawyers do not charge the true cost of preparing a will. It is their opportunity to show you what they can do. Often, if they take good care of you, they'll get your business (or your recommendation) when they (or a friend) need help.

If you read "Do I need a will", you'll see the true costs of dying without one. The thousands it can cost you when a will is incorrectly drawn should be reason enough to spend a few hundred dollars to get the will done right.

Occasionally, I have to probate wills that were generated by computer, or purchased from an office supply, or handwritten (holographic). Many times these are done wrong. Remember that almost every state has different requirements, so a form will that works in one, doesn't always work in another. Why do you think that form, wherever you got it, has a statement with it that tells you to seek a lawyer? (Answer: To cover their butt when you ignore the warning--like they know you will-- and screw it up).

Furthermore, no one form fits everybody. It is like walking into a men's store blindfolded, grabbing a suit and walking out without trying it on; what are the odds that it will fit you? It takes experience and training to know which form is the right one for you. Remember, you don't know, what you don't know. In other words, there may be very important clauses left out of the form you choose that would benefit you greatly, but because you don't know of their existence, there is nothing to warn you of their absence.

Let me give you some examples. I had a former client who was a "do-it-yourself" kind of guy. I represented him when his father died without a will. The family fought and the father's estate was very expensive (my standard will says that anyone who contests it, loses their share). When my former client died, his widow brought me a will he did from a computer program. It had all sorts of language that had nothing to do with his particular situation. Worse yet, it didn't have a standard clause (which any Texas law student would know to include) allowing the will to be probated with minimal court supervision. This client's family ended up spending nearly two thousand dollars more than necessary simply because the will didn't have that clause.

Other clients have drafted wills that forget to provide for contingencies that naturally arise. For example, they say, in effect, "Give my car to Uncle Joe" but what if they trade the car in, or what about the debt on the car (pay it off or make Uncle Joe pay it), or what if Uncle Joe dies first? All these things are second nature to a good lawyer.

Another area frequently done wrong by clients are the way they sign their will. The law has very clear requirements for how a will is signed. They are designed to protect the deceased and his heirs from fraudulent wills. If not signed properly, the will is no good. Several times per year I have to inform families that the deceased's estate will not pass according to his last wishes, but will follow the dictates of the Texas Probate Code (it still goes to his family, just not the way they want it).

To sum it up, I quit working on my own car a long time ago because I'm not stupid enough to drive in any vehicle I fixed myself. Don't draft your own will.

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