There is no such thing as a simple will. Yes, the information contained in the will may be simple, and the estate itself that is being protected may not be complex. However, the circumstances surrounding the drafting and creation of a will are rarely simple. Additionally, a will is not typically a simple document that can fit onto one sheet of paper. At the same time, handwritten wills can be viable alternatives to lengthier documents created by a word processor; you will likely need to have one of these longer and wordier documents drafted to tell future generations how you want your estate handled at the time of your death. Since I am fond of telling people that to be unclear is unkind, the more written a will is, the better off you and your family will be.
One of the first pieces of advice that I provide to people like you looking to have a will drafted is that you need to make sure that you enlist some help. It is not enough to go online and enter your credit card information to have some website create a will for you. Would you bet on that website's ability to protect all the property you have worked your entire life to accumulate? Would you bet on the accuracy of that website to ensure that your spouse, your children, and their children are taken care of after you pass away? Everybody loves a good bargain, but a good bargain is nothing compared to peace of mind. The peace of mind you will have after creating a well-thought-out and clear will greatly benefit you and your family.
This process starts with asking questions. Interviewing competent and experienced probate and estate planning attorneys is where this all should begin for you and your family. Talk to an attorney who knows how to draft a will for you. If you are an older person with a great deal of property and family members to distribute property to, you need an attorney who has successfully drafted many wills for people like you. Ideally, that person should not only be adept at drafting legal documents but should be able to walk you through the steps of the process and answer your questions.
Does your attorney have the heart of a teacher?
Find an attorney who will listen to your questions and provide you with answers that you can understand. Do not assume that because the “law” is complicated that your attorney can get away with talking legalize to you without making a lick of sense. The law can get complicated at times, but it is not so complicated that you cannot speak in plain English. Rather, consider that the attorney you hire must be able to process all the information you provide to them and produce a document that suits your circumstances. If they cannot or will not consider questions or changes to the plan along the way, then they probably aren’t the right attorney for you and your family.
I always like to tell people that they should be looking to hire an attorney who has the heart of a teacher. A teacher is not someone who necessarily works for the school district and has the summers off. Rather, a teacher is a person who has a heart for others and is willing to put forth the time and effort to help a person better understand the world around them. Think about it this way: a good attorney is also a good teacher. The more people your attorney reaches out to and "teaches," the more client they will have and the more money they are likely to make. This may cause your view of attorneys to be changed if you start to think about good lawyers more as good teachers than as good litigators or debaters.
It would help if you came prepared with questions when you meet with an attorney for the first time. You do not need to come with questions about every single scenario that could impact your family in the future after you pass away. But you do need to come prepared with questions about what may happen in a few different scenarios and how best to attack those problems if they arise. Pay attention to how your attorney addresses you and your questions. If they are patient, make eye contact, and are respectful, you probably have a keeper. I wouldn't want a pushy, impatient lawyer drafting my important legal paperwork, especially if it is my family who will bear the brunt of any mistakes they make.
Should you ask your family member to help you draft the will?
One of the methods that I have seen people employ to have wheels drafted for themselves is to ask a family member to help them. For an older person who may have little experience or understanding of the Internet, this is a reasonable request. Why wouldn't a person ask someone that they trust to help them compile a vital document, like a will? The main problem with this strategy is that while a relative may have good intentions in asking you to help them create this document, you are likely outside of your depth when it comes to being able to help.
This is true even if you have a family member who is an attorney or if you are a lawyer. For example, unless you or your relative is experienced probate or estate planning attorney, the drafting of a will is likely outside your normal scope of work. There are certain risks associated with trying to help you are well-intentioned family members create a will. Any attorney can tell you about the dangers of inadvertently creating an attorney-client relationship by doing someone a favor. Attorneys will even tell you stories of inadvertently giving someone advice at a party and learning later on that person considered you their attorney. This should give you pause as you consider whether or not and to what extent you can help a family member create a will.
To any attorneys reading this blog post, you should begin to think about your competency when drafting a will. It is against the rules of professional conduct for an attorney to accept representation or help someone in an endeavor beyond their competence. The world of estates and probate changes just like every other area of the law. Unless you are an attorney who practices inside that world consistently and you are likely not equipped to handle those changes and consider the necessary alterations that may need to be changed based on the changing laws in Texas.
You need to ask yourself why you are getting involved in the wheel drafting process for your loved one. Sometimes you may be listed not necessarily to give legal advice but to facilitate a discussion between your loved one and a person with more knowledge or expertise. Many people are uncomfortable speaking with an attorney and can view you as a go-between or a translator of sorts. Additionally, you may be looked at as someone who can provide information or help 2 bring people together, such as if you knew an attorney in the area that could help your loved one. In that case, I don't see much wrong in fulfilling either of these roles for your loved one, even if you are not an attorney. The truth is that not everyone is comfortable or competent in seeking out legal advice for themselves. You may be able to act as a missing link between your loved one and competent legal advice.
Another possibility is that you may help your loved one from the perspective of your having known the parties and facts involved in the case. For example, consider the situation if you are helping an elderly relative, but there is state planning. You may no all your relatives, the property involved, and other information like this. As a result, you could be a valuable resource for your family member to communicate information to your loved ones' attorney. Even still, you need to make clear to a loved one that you are not their lawyer and are merely operating as a go-between or facilitator of discussion between yourself and their lawyer.
What you need to be careful of, however, Is becoming emotionally involved in the situation to the point where you cannot separate your stake as a family member from a person who can provide objective assistance. As any attorney can tell you, one of the major benefits of having an attorney represent you in a case is that they will be less emotionally invested in the case. I think we can all agree that having an emotional investment in something can cause us to become less focused on the facts and more focused on how we feel. This is understandable, especially when we are talking about the well-being of family members. However, that doesn't necessarily make it any easier to represent or assist your loved one adequately.
If you ask a family member to draft your will for you, can they accept a gift?
This is a relevant question that I have had people ask me in the past. The question is, if you ask a family member who is an attorney or not to draft your will for you, can that person then be named as a beneficiary under your will? This question takes on added importance if your loved one is an attorney. Attorneys have disciplinary and ethical rules that prevent us from collecting gifts in certain situations. This is a concern that your loved one should keep an eye on more so than you, but it is worthwhile for you to be aware of the different circumstances in a play about gifts for loved ones under a will that your loved one helped you create.
The Texas Rules of Discipline/Professional Conduct state that a lawyer shall not prepare an instrument giving the lawyer or a person related to the lawyer as a parent, child, sibling, or spouse any substantial gift from a client, including a testamentary gift, except where the client is related to the donee. This should give you pause if you choose to work with a loved one as an attorney or as someone who wants to hire a loved one to help you draft a will or plan your estate.
You need to give many considerations in terms of working with a loved one to help you create a will. This is in addition to the problems associated with working on drafting your will with the assistance of an online resource or website. Some of you reading this blog post may not have family, friends, or other people in a support group to help you by providing direct information and assistance. This means that you may feel like your back is against the wall and that you may need especially to pay attention to do the information available in a blog post like this.
Going online for assistance or help in drafting a will is only natural given how much time we spend on the Internet these days. While the pandemic did not create an increased availability of the Internet in our daily lives, it certainly did speed up the process of us spending more and more time in the digital world. While there will be some recalibration of this as we emerge from the pandemic, the reality of the situation is that we can expect to see more and more resources associated with the law go online.
What does that mean for you as a person who was interested in having a will drafted? You need to decide whether or not you will seek assistance online to have your wheel drafted or if you are better off working with an individual to do so. My advice would be to collect information as early as you can about your circumstances. This may mean going to websites like our own and other estate planning and probate attorneys in Texas. Laws vary from state to state, so please be careful about where you are seeking information. You do not want to put yourself in a position where you have begun to rely upon information that is out of date or based on another state's laws.
Additionally, many attorneys offer free of charge consultations with potential clients like yourself. You need to call or email the attorney anywhere to find out more information about whether or not they can meet with you. Attorneys understand that not every family in every person has the same budget for estate planning and probate matters. The great thing about living in our area is that you will not struggle to find an attorney who will tell you that they can work on your case. The trick for you is to find an attorney that you trust and as someone who can walk with you during this time of your life.
Working with an attorney can also help you to create solutions that you otherwise may not have considered based on your circumstances. For instance, you may have only considered a few different options in terms of which beneficiaries you want to be able to inherit from you upon your death. An experienced probate and estate planning attorney can help you to do as much as possible to avoid the probate process and also to ensure that your loved ones can inherit from you based on the best available information for your family at the time.
Finally, you can still involve your family in creating your will even if you do not have a family member draft the document for you. You can have your loved one work with you and the attorney to help facilitate information and communicate if that is something you have concerns over. For example, our office works with clients all the time who have other relatives or people in their support circle, helping to share information and ideas. The nice thing about drafting a will is that it can be a collaborative effort that allows you and your family to consider your circumstances best and move forward based on your family's needs and those of your loved ones in the future.
Questions about the material contained in today's blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained in today's blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed estate's law attorneys offer free of charge consultation six days a week in person, over the phone, and via video. His consultations are a great way for you to learn more about the world of Texas estate planning law and how the filing of a probate case may impact your family.