The following is provided for informational purposes only and is not, nor should it be construed as legal advice.
Benjamin Franklin may have said it best when he described some of us as having a tendency to be “penny wise and pound foolish.” Many people make the assumption that because a Will professionally prepared by an attorney is relatively inexpensive and not very time consuming, that a “fill-in- the-blank” form from the internet should do the job just as well.
This assumption may prove to be true in a very few cases where care of children or the elderly may not be a consideration. In the vast majority of cases observed by this firm, at time of probate, the well intended saver ends up forcing his family to hire an attorney to cure the defects and/or failures. These defects and failures result in Wills that are not Texas specific or just don’t express the intent of the testator.
When asked by a client if they can write their own Will from the internet, I always advise them “Yes, if you are aware of all the requirements of a Texas Will,” and then point out that it is often an economic disadvantage to their estate for them to do so because of the potential increased cost of probate.
In my own practice, a non-exclusive list of some of the most common defects include the following:
- Failure to specify that the executor or executrix appointed should be ‘independent.’ This ability to enjoy independent administration of an estate makes probate a much more simple matter in Texas than it is in some other states, and by virtue of the simplification is far less expensive than in many other states. Many of the canned Wills on the internet do specify service without bond, but few actually provide for independent administration. There are ways to cure this defect if the beneficiaries are willing to agree, but the steps required for probate increase and become problematic if beneficiaries do not agree. If beneficiaries do not agree, then the cost of probate may be increased many times over.
- Failure to dispose of all property. Many internet Wills are very asset specific and fail to indicate how non-specific assets should pass. This may result in part of your estate passing as indicated in your Will and part under Texas Intestate Succession.
- Failure to follow the formalities of execution: These failures can range from simply not having the requisite number of witnesses to having witnesses who are not qualified to serve as such for that particular Will because of age, competence or relationship as a beneficiary under the Will. This firm is currently involved in a case where the witnesses to the Will were also the beneficiaries. This defect may or may not be curable, but in either case, it will result in additional cost at time of probate.
- Failure to have a Notary Public administer an oath on all witness or testator signatures. It is not uncommon to find internet Wills that have the witnesses and testator sign only on an attempted self-proving affidavit without first executing the Will. This, unfortunately, requires the calling of additional witnesses at time of probate (which would have been unnecessary), but fortunately is not usually fatal to the Will, but probably will be fatal to the attempted self-proven affidavit
- Attempts to use terms with which they may not be completely familiar. Executor, trustee, per capita, per stirpes and many others are words of art and should not be used without a clear understanding of their meaning. For example, an executor and a trustee may be the same person with overlapping powers or they may, and usually are, two separate persons whose duties to the estate are entirely different. Those forms often toss around the terms per stirpes or per capita as if there is no difference when “in fact” they may identify an entirely different group of beneficiaries. For example, “I leave my estate to my children per stirpes” means that if one of my children predeceases me and has children then my estate passes to the children of my children. “I leave my estate to my children per capita” means that your children are the class of persons who will inherit your estate, and that it will pass only to your living children, whether or not a predeceased child had children at the time of his/her death.
- Missing trust provisions. Internet Wills are directed to an average and uncomplicated situation. Rarely do these instruments provide adequate provisions for the care of surviving children, grandchildren, surviving spouses or aging parents.
In at least one estate probated by this firm, the testator, who was a very intelligent, successful and accomplished professional architect, drafted and executed a document that did not even meet the threshold test of “what is a will.” The result was that testamentary wishes were necessarily ignored completely, and the estate passed under the Texas laws of intestate succession as if no Will had ever been attempted.
I will be the first to confess that the particular case cited was unusual in its dramatic lack of authenticity, but most of the defects were well within the realm of what is normally observed when a “do-it-yourself” Will is attempted.
I would dare suggest that most of us faced with a serious illness do not wish to relinquish our fate to advice that we glean from the internet, whether it is touted to originate from a medical doctor or not. The seriousness of trusting the fate of your probate estate to internet advice without a personal evaluation by a trained professional is just as risky.
It is recommended that, when you are faced with health issues, you allow a medical doctor to examine your particular circumstances and apply his expertise.
The same recommendation is made when you are faced with estate issues. You are encouraged to ask an experienced Doctor of Jurisprudence or other qualified attorney to examine your circumstances and apply his expertise.
James Bright has been admitted to practice before the Federal Courts for the Southern District of Texas and Eastern District of Texas as well as all of the Justice Courts, Probate Courts, County Courts at Law, District Courts, Courts of Appeal and Supreme Court for the State of Texas. He maintains an office in Houston and by appointment another at 208 McCown Street in the heart of historic Montgomery. Contact may be made by telephone (936) 449-4455 or (281) 586-8277. For more information about wills or probate in Texas, please see- www.houstontxprobate.com
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JAMES M. BRIGHT
14340 TORREY CHASE BLVD., Suite 150
Houston, TX 77014