Drafting Wills

Why do I need a will?

When you die all of your property is included in what is termed your estate.  The courts have the responsibility to determine what to do with your estate when you die.  If you do have a will the courts will almost always follow your wishes.  If you don’t have a will the courts are forced to follow guidelines given to them by the Texas Legislature.  Dying without a will is called dying intestate.  For an easy-to-follow guide on how the intestacy statutes work in Texas please see my brochure “Where Does It All Go?”

If you looked at the brochure you might say it’s a mess, isn’t it?  While I’m sure the Texas Legislature always has good intentions, the intestacy statutes can cause real problems, especially with today’s modern family.  Blended families, with children from outside the marriage, can find themselves in a real bind, as can families who have a large amount of separate property.  While the reasons are different, the outcomes are essentially the same.

Let’s say we have a typical family: Father, Mother and two children, John and Jane (original, eh?).  Let’s assume that they happily live in the house Father inherited from his parents.  Tragically, Father dies without a will, leaving behind Mother, John and Jane.  Because Father did not have a will the courts will follow the intestacy statutes.  In this case, Mother may find herself in a bind.  She doesn’t own the house!  She may live there until she dies, if she wishes, but she cannot sell the house and cannot take out a mortgage on the house without her children’s permission.  What if the John and Jane are only five and three?  Courts will certainly not allow them to make those kinds of decisions alone, and Mother may find herself in court dealing with guardians ad litem, who may deem that selling or mortgaging the house aren’t in their best interest.  What does Mother do now?  Unfortunately she finds herself in the unenviable position of having to pay a lot more for an attorney than she would have had to if Father had only had a will.

Other issues arise when both parents of a minor child die.  Would you give a house to a 4 year old?  Neither will the courts.  Courts will require that a guardianship be established prior to distributing the estates of his or her parents.  With a will this is a quick, although emotionally draining, process.  Without a will this can an expensive nightmare.  It also becomes more expensive because the courts will most likely require a dependent administration.  This keeps the court in the loop to a much greater extent.  This is meant to protect the interests of the child, but it is also much more complicated and therefore much more expensive.

Another major problem, especially in Texas, is how same-sex couples are treated.  If you are in a same-sex relationship and do not have a will, run, don’t walk, to the nearest attorney that can help and get one today!  There is no excuse not to.  Even if you both have very little, your partner will not get anything of yours.  There is currently no recognition of same-sex marriages in Texas.  Because of this, the intestacy statutes do not provide for any distribution to same-sex partners.  The only way to protect each other is for both of you to seek the advice of an attorney that focuses on GLBT estate planning.

What Do I Get Out Of A Will?

Probate has been vilified over the last decade; mostly by peddlers of Living Trusts who are trying to make a living selling probate avoidance tools.  There are plenty of uses for instruments that don’t require probate, but avoiding probate because of its costs isn’t a good argument in Texas.  Probate, especially in Texas, is a very cost-effective way to distribute your estate.  We’ve already gone over some of the reasons why having a will is necessary.  Now I want to discuss the financial advantages of having a correctly prepared and executed will.

While some states require in-depth participation by the court, Texas allows for something called independent administration which gives the executor the ability to settle the decedent’s accounts without much interference from the courts.  In fact, the Texas Probate Code says that the only actions that must be done in court are probating and recording the will and filing the inventory and appraisement and list of claims.  It is also cheap and easy to prove-up a properly executed will that is accompanied by a self-proving affidavit.  In order for probate to be cost-effective, however, it is very important that certain aspects of the will are done correctly.

• Independent administration must be requested to avoid the costs of dependent administration;
• The will must be self-proved to avoid the costs of seeking the witnesses and having them testify;
• The execution of the will must follow a very specific set of steps in order to protect your chosen heirs from losing a will contest;

So Why Pay You, Why Not Just Buy A Do-It-Yourself Plan?

It’s important to understand that each state has its own laws regarding wills.  They are often very different rules regarding the required language in a will.  Texas requires very specific language to ensure that an independent administration is allowed.  There are also very specific steps to take during the execution of the will.  With the large do-it-yourself legal kits, the instructions can be very complicated, if not downright unintelligible.  Unless the exact wording is included and the exact execution procedures are followed the court may not allow an independent administration or may not allow the will to be probated at all.  That can become very costly.  Is the 200 or 300 dollars you may save now really worth the several thousand dollars and heart ache and worry that it could cost you family in the future should you make a mistake?

What Now? Choose Your Estate Plan!

The Law Office of Joshua C. Tisdale can prepare your simple wills, living trusts, pet trusts and complex estate plans.  We offer a variety of low-cost solutions that will suit your needs.  Whether you are single and want a simple will, or you need advanced estate tax planning, we are here to help guide you.

Our plans are set out below.  Simply choose what plan best meets your needs and contact us.

You can contact us by email at counsel@joshuatisdale.com or by phone at (214) 519-8448 and we can schedule a free 20 minute consultation to help you with your decisions.