While many websites tout themselves as a do-it-yourself solution that will save you lots of money, when it comes to your will, this can be dangerous; as a source described it, an online will could end up with “all the authority of a grocery list that has been notarized.”
There are simply too many opportunities for a will to be declared invalid, meaning that you should work with an experienced estate planning attorney in order to avoid confusion and hardship later on for those who are most important to you.
This is Important. Make Sure it is Done Right
Even do-it-yourself will websites recommend bringing a knowledgeable attorney into the process when it comes to handling important, complex issues such as passing your assets onto a living relative. There are a variety of things that can go wrong and difficult to figure out using one online formula because your life, like everyone else’s, is unique, and thus your will should be unique in order to properly plan for the future. For example, some of the things you will want to specifically discuss with an attorney include:
- Naming your executor: This can be a difficult choice because he or she plays such a significant role in the closing of your estate. An attorney will advise you not to just choose someone you trust who is close to you, but someone who ideally has some financial acumen and/or knowledge of the law;
- Writing in conditions on heirs: Any conditions that need to be met before an heir can receive his or her inheritance need to be specifically spelled out, and someone needs to ensure that these conditions are met;
- Distinguishing end-of-life decisions versus wills: Any end-of-life decisions (such as not being placed on life support) need to be placed in a separate context because your will will likely not be read until after you die;
- Hierarchy regarding beneficiary designations and your will: Regardless of whether or not you wish to leave your 401(k) to a particular individual, if you fail to list an account beneficiary on your 401(k), this likely will not happen. Funds go to named beneficiaries first, regardless of what you express in your will;
- Funeral arrangements: Like end-of-life decisions, they need to be explicitly spelled out elsewhere because the will is often not implemented until after the funeral has already taken place; and
- Blended families: This can get complicated, the best advice is to work with an attorney in order to avoid family feuds later on;
- Planning for your pets: It may surprise you to find out that leaving money to your pets is not the way to ensure that they are taken care of. A caretaker needs to be specifically named, and detailed information provided.
The Dangers of Improperly Executed Wills
Without working with an experienced professional who practices in estate law locally, it is entirely possible that you may not execute the will properly, which includes following the formalities of signage and witnesses. Regardless of whether anyone ends up contesting your will, courts cannot validate provisions of a will if it is not properly executed. In addition, if a provision does not make sense, the will could remain in probate for some time, which can be expensive and add unnecessary delay.
Even Little Mistakes are Dangerous
Typos, missing information, and poor wording can make the intent of the will unclear and therefore more likely to be challenged.
Online Wills are Not Necessarily in Accordance With State Law
Each state has its own rules such that there is no one formula for drafting your own will. For example, some states recognize oral wills, while others do not, and some states require three signatures, while others require two disinterested parties to serve as witnesses to the will. Because states have different laws regarding many aspects of a will, from how it is executed to estate taxes and exemptions, do-it-yourself wills are generic and unlikely to pick up on specific state laws. If this happens, one mistake could make the will invalid, or leave a beneficiary with a large tax bill.
Rules Governing Witnesses
In Texas, the will must be signed by the testator or by someone else at the testator’s direction and in their presence, and attested by two or more credible witnesses who are over the age of 14. The witnesses must also sign in the presence of the testator. In addition, if a notary is signing for an individual who is physically unable to sign, the notary must sign the individual’s name in the presence of a witness who has no legal or equitable interest in any real or personal property that is the subject of the will. Under Texas law, an individual who is a beneficiary who also signs as a witness does not render the will invalid, however, because Texas Probate Code does not explicitly authorize corroboration by an attesting witness, practitioners tend to avoid beneficiary-witnesses at all costs. It is best to ensure that there are at least two disinterested witnesses in total present, even if one of them is the notary.
Change is the Only Constant
Your life changes after you create your will and as such, your will must be amended properly and regularly. To discuss your will, contact Michael P. Fleming for a free no-obligation consultation today. We serve clients in and around Houston.