Posted in Estate Planning, Investments, Probate, Small Business, Texas
Should I Hire an Attorney to Draft My Will, Or Do It Myself?
Should I Hire a San Antonio Estate Planning Attorney to Draft My Will?Introduction All of us – well, many of us – have seen some of the family drama, feuds, and fights that erupt over inheritances when a family member passes on. These inheritance disputes can get truly nasty and can for years or even decades. Family members who formerly got along suddenly have volcanic disagreements, festering resentments, and all sorts of other If you haven’t seen it up-close and personal from an estate that you have been directly involved with – and by the way, I truly hope that you haven’t – odds are you’ve at least heard about something like this from a friend, colleague, acquaintance, or something. And, odds are, they weren’t particularly happy about it. As a San Antonio Estate Planning Attorney, I have seen this situation more times than I care to count – and every time it’s disappointing and heartbreaking, to see folks in the midst of a trying time of grief and loss to add fuel to the fire by fighting. There are a handful of methods you might try to avoid this kind of fight among your beloved sons, daughters, grandchildren, and so forth after you’re gone. One way is that you could simply ask them not to fight. We’re sure that’ll work. But if you’re not so sure, there’s another, much better way to ensure that they won’t be at each other’s throats. That way is to have a will! A well-drafted, properly-executed, ironclad Last Will and Testament – that will set forth precisely who gets what, who is to serve as executor/executrix, and many other things. Of course, there are many ways to have a Will in Texas.
- You can draft a holographic will;
- You can prepare a will using a proprietary fill-in-the-blank form;
- You can use an online legal service provider to help you prepare your own will; or
- You can contact an attorney who will work with you to prepare your will (and other documents).
You might be saying to yourself “well, you’re an attorney – of course you’re going to tell me that EVERYONE should ALWAYS go see an attorney” … it may surprise you to know that this is not my position.
To be clear, under many circumstances, failing to hire a competent Texas Estate Planning Attorney can result in disastrous consequences. But as with so many things in the law, there’s no one-size-fits-all answer here.Each of these four potential answers could be useful to a person under certain circumstances. My goal with this post is to give you some information that you can use to select the right method of preparing a will – FOR YOU. Holographic Wills: Pros and Cons A holographic will doesn’t have anything to do with holograms. A holographic will is holographic in the sense that it is entirely in the handwriting of the testator (and signed). Entirely, you should note, means ENTIRELY. If any of the “will” is typewritten, the typewritten parts will be disregarded. What are the Potential Benefits of a Holographic Will?
- It is simpler with fewer formalities: the holographic will does not have to be witnessed and notarized like a more traditional will, and the holographic will can be written on anything (in one famous case, a holographic will scratched on a tractor fender was found to be a valid will).
- It is cheaper: a holographic will does not require any purchase of anything, other than a writing instrument and something to write on.
- It can be used very quickly in an emergency: unlike a typewritten will, which must be notarized and witnessed, and therefore requires some amount of planning and ceremony, a holographic will can be created informally, in an emergency, very quickly (indeed, this is theoretically one of the main purposes of the holographic will)
- Better than nothing: as you might have gathered from some of the other articles on this side, intestacy can be extremely expensive, and even if your holographic will has some problems, it’s unlikely to be completely invalid – and passing away with a will that has some problems is better than passing away without any will at all (but worse than passing away with a proper, well-drafted will)
- No legal guidance: without an attorney to guide you through the process of creating a will, it’s possible that some of your instructions or bequests might not be legally permissible or enforceable and accordingly, it is possible that the court might disregard or reinterpret the problematic provisions or bequests.
- Not legal in every state: while holographic wills are legal in Texas, they are not legal in every state; and if you move to another state or country and/or die there, the jurisdictional rules could get weird.
- Possible vagueness or ambiguity: without expert drafting assistance and legal guidance, the words that you wrote down might be interpreted differently from the way that you had intended them (and, for obvious reasons, you aren’t around to explain!).
- Possible omissions: while an attorney who has drafted hundreds of wills has the ability to point out omissions and gaps in your will, ask probing questions, and help you prepare a complete plan, with a holographic will, you will have none of this assistance.
- Potential authenticity challenges: unlike a formal will, which is witnessed and notarized, a holographic will must rely on handwriting verification alone for its authentication.
- Does not extend to other estate planning documents: a holographic will does not extend to the other “typical” documents that form the estate plan that you might receive from one of the other sources of drafting a will – such as a medical power of attorney, durable power of attorney, physician directive (or living will), or HIPAA authorization.
- Price: most obviously, these fill-in-the-blank wills are incredibly cheap. They generally run from roughly $10-$50.
- Some Legal Drafting: these forms have presumably been developed and/or edited by an attorney or attorneys somewhere along the line, and so would tend to reduce your risk profile (but note that, unless the form specifically states that it was developed by an attorney, you can’t really know).
- Some Prompts: these forms will have some instructions that, again, would presumably have been developed with guidance from a lawyer or lawyers, at some point (again, check the fine print).
- No legal guidance: just as with a holographic will, you don’t have an attorney advising you as to whether your bequests, instructions, etc. will be enforceable, unenforceable, or anything else. Likewise, if you have questions about the instructions provided with your fill-in-the-blank will, you’re out of luck.
- Possible Vagueness or Ambiguity: again just as with a holographic will, although perhaps to a slightly lesser degree, if your instructions filled into the blank are unclear, vague, ambiguous, or subject to multiple conflicting interpretations, this could be an issue at probate. Even if the probate is uncontested, this could still create major problems for your executor!
- Possible omissions: again just as with a holographic will, although perhaps to a slightly lesser degree, if you have concerns or issues that go beyond the one-size-fits-all form provided by the fill-in-the-blank form, again, you’re out of luck.
- Formal signing ceremony required: unlike a holographic will, in order for a typed (even partially typed) will to be valid, it must be properly witnesses and notarized. Under Texas law, you must execute the will in front of two disinterested witnesses and a notary – which is “old hat” for a law office (we do this every day), but for a DIYer, it can be a little bit (or more than a little bit) of a pain in the neck.
- Risk from incorrectly complying with the signing ceremony: there are various requirements for the execution ceremony to be valid, what it means to be a “disinterested” witness, etc. While an attorney could advise you with regard to the rules here, if the instructions on the fill-in-the-blank product are unclear or incorrect and you perform the signing ceremony incorrectly, your will may not be valid. Worst of all there will be no Wills Attorney to tell you that you’ve made a mistake!
- There are 50 states with 50 rules: where was the form produced? is it a one-size-fits-all form, or does it comply with your state’s law?
- Laws change: has there been a change in the law since the form was published?
- Price: while online legal service providers are more expensive than a fill-in-the-blank product, they’re still pretty cheap. They will save you some money in the short-term compared to hiring a real attorney.
- Some Legal Drafting: as with the fill-in-the-blank forms, the online forms have presumably been developed and/or edited by an attorney or attorneys somewhere along the line.
- A Little Bit of Guidance: frequently, the online legal service provider will have more instructions and guidance than the fill-in-the-blank products; and while they nonetheless lack the ability to render actual legal advice, there is often a “help chat” or an FAQ or something like that to consult, if find yourself utterly and totally lost.
- Some Prompts: as with the fill-in-the-blank products, online products will have some instructions that presumably have been developed with guidance from a lawyer or lawyers, at some point.
- Difficult-To-Understand Multiple Choice Questions: I have had to clean up many legal messes made by folks who thought they were saving a buck by using an online legal service provider. The problem is, some of the multiple choice questions aren’t exactly easily understandable.
- No legal guidance: just as with the fill-in-the-blank products and holographic wills, the lack of an attorney advising you on your bequests, instructions, etc. is a major downside. Likewise, if the instructions or clarification provided by the fill-in-the-blank product is not sufficiently helpful to get you “over the finish line” you have nobody else to ask. Online providers, again, are severely limited in their ability to answer questions as they are prohibited from “practicing law.”
- Possible Vagueness or Ambiguity: again just as with a fill-in-the-blank or holographic will, although perhaps to a slightly lesser degree, if any of the writing you do yourself is vague or ambiguous, this could be an issue at probate.
- Formal signing ceremony required: again, in order for a typed will to be valid, it must be properly witnesses and notarized. Therefore, in the State of Texas, you must execute the will in front of two disinterested witnesses and a notary – which for a DIYer, might not be the easiest thing
- Risk from incorrectly complying with the signing ceremony: as discussed above, there are various requirements for the execution ceremony to be valid. Without an attorney’s advice, you risk performing the signing ceremony incorrectly, resulting in an invalid will.
- Competence + Training: Most San Antonio Estate Planning Attorneys are likely to have a pretty good idea of what they’re doing. Or, if not, they know what they don’t know, and when it’s time to bring in more expertise (the same, unfortunately, cannot be said for many laypeople).
- Significant Reduction of Downside Risk: Related to the previous point, because you have an extremely experienced advisor in your corner, the risk of something going horribly, catastrophically wrong with your will and, if applicable, the rest of your estate plan, is drastically lower.
- Easy and User-Friendly: A high-quality Texas Estate Planning Attorney will also likely be adept at answering any and all questions that you may have about the process, and guiding you smoothly through each step of the process. As a seasoned professional in the estate planning field with many years of customer service experience, your Trusts, Wills, and Estates Attorney will be able to answer many questions – perhaps not every single question you could ever come up with, but almost.
- Future Changes Are Easier: Let’s say that in a year, or two years or five years (or 10 years or 20 years) you change your mind about what you want your Last Will and Testament to say, contain, direct, etc. Unfortunately, it’s not as simple as writing in a correction! You may have to prepare a codicil, or in many conditions, an entirely new will. If you’ve used one of the other methods of preparing your documents, you’re starting again from scratch. But if you’ve engaged an attorney to begin with, they most likely have your original set of documents, and the revisions will go much more smoothly.
- Other Estate Planning Documents: A competent Texas Estate Planning Attorney can help you prepare your medical power of attorney, durable power of attorney, physician directive (a.k.a. living will), HIPAA release, trust, designation of guardian, Lady Bird Deeds, Transfer on Death Deeds, and many other documents that you might want to be part of your estate plan. For any of the other options listed, you’ll end up going a la carte for any of these other documents.
- Safekeeping: If you want an attorney to keep a copy of your Will, there are few places more secure than the locked file cabinet of a Trusts and Estates attorney. But if you have not engaged the services of an attorney, you’ll have to make your own safekeeping arrangements.
- Keeping Up To Date: Occasionally, there are developments in the law related to Estate Planning, and if you want someone who’s going to be up-to-date on the latest changes in the legal landscape that will inform your estate planning decisions, you should look to your attorney.
- Expense: There’s no way around it. The up-front expense of an attorney will be the highest of any of these options. And while it is undeniably true that, in most cases, this up-front cost is a good investment that will usually save money over the long run (not to mention that it will also save hassle and time), it’s still an expense that not everyone is ready to incur.
- Risk Aversion: Lawyers are generally conservative and risk-averse, particularly Estate Planning Attorneys. We like to do things the right way and follow all of the rules. If you’re someone who prefers to take some risks, you may find yourself occasionally at odds with your lawyer.
- Lawyer Jokes: You won’t be able to tell quite so many lawyer jokes once you get to know your attorney. Just kidding! We know all the BEST lawyer jokes.