The process of drafting a will can be a tricky one. On the one hand, you were having to focus on taking a great deal of information about your life, your family's lives, and your future and put everything down into a single document. That single document will determine how your affairs and estate are handled once you pass on from this life. No matter how crucial this is to your family or how well you understand the necessity of doing so, it can still be difficult to face your mortality and take steps towards preserving some degree of autonomy over your property once you pass on.
One of the reasons why drafting a will can be so tricky is that you also have to consider factors related to emotional aspects of your life, sometimes messy family histories, as well as the ability to be honest with your family about what your wishes are after you pass on from this life. For many people, it is even difficult to share with their loved ones the contents of their will before they pass away. We see this when people failed to read their will allowed or discuss it with their family before their passing. What happens next could be straight out of a movie with upset family members finding out what dad included in his will, much to their surprise. It is enough to upset an entire family when you aren't prepared to share with your loved ones what your will contains.
In the midst of all this, you, as responsible individual planning for your family's life after you pass away, need to determine whether or not to enlist support to help you plan you are a state. Many people in this day and age take to the Internet to have a will drafted for themselves. In many ways, you cannot blame a person for doing it this way. Advertisements and gut instinct tell you that it is less expensive and far easier to tell the computer what you want your will to say versus working with an attorney. Attorneys don't have the greatest reputations for being nice to deal with and can cost a pretty penny in certain circumstances. Why not just go online and leave it to the computer?
Despite any misgivings you may have about the estate planning process, I can tell you that you must be able to take the time in effort necessary to plan for your future. Indeed, it is not good enough for you to spend 15 or 20 minutes thinking about your future and your family's future after you pass away. Rather, their responsibility is such that more effort and more time are required. The reality of the situation is that while you may not directly benefit from the time devoted to this endeavor, your family certainly will. It would be a shame to work your entire life to benefit your family and then not take the responsibility seriously at the end of your life to prepare for your passing and protect your family and your property once you are gone.
Your family and mine are different. Your family and your neighbors are different. What an online will builder fails to take into consideration is this obvious and important reality. The way your will looks is drafted and is considered before drafting should not be the same as anyone else's. You are circumstances, and what is best for your family needs to be considered before drafting a will. No online will builder or website can adequately consider the realities of your family and protect what you have worked so hard to build. You are leaving to chance your family's future by not seriously taking the time to draft a wheel. As a person spending some time reading a wills and estates blog post, I can tell you are not the kind of person who leaves anything to chance.
What can an experienced estate planning attorney do for you and your family?
Working with an attorney certainly has its advantages when it comes to drafting a will. While no document can perfectly encapsulate newer experiences and desires as a member of your family, certainly, having an attorney assist you with drafting a will can offer you some degree of protection against missing out on methods and language that could have improved your estate planning goals. The key to goodwill is accurately and reflecting your wishes and being able to stand up to scrutiny if challenged in the future. From my experience, wheels drafted by an attorney meet these goals far easier than a draft from an Internet form.
Not to mention, coming up with goals for your case is not easy in and of itself. As someone who has a life, a family, and interests outside of drafting a will, there is no reason to expect that you already have a well-defined intangible set of goals regarding your estate planning. You may have general thoughts and wishes but need to take those thoughts and wishes and put them into writing. That is where the experience of an estate planning attorney can help. They can assist you in determining what should and should not go into your will.
Drafting a will can bring out emotions in you and your family.
The paradoxical part of will drafting is that while it is a subject that requires a great deal of thought and planning from you as an individual, it only matters to your family when the time comes. Obviously, you can't; once you pass away, you cannot receive any material benefit from the drafting of a will. Rather, only your family members stand to benefit from the effort you made into drafting the will. Conversely, only your family stands to be harmed by you're not taking the responsibility seriously to have a will drafted in the first place.
Many people express feelings of guilt or other negative emotions regarding the entire will drafting and creation process. Those negative emotions typically come from a place where you realize that this is something they should have taken more seriously and gotten around to doing years earlier. As such, the need to draft a will typically arise in a moment of fear, anger, or a combination of multiple emotions. That initial meeting with an estate planning attorney can be a difficult one because you may be battling several emotions that are not positive and you did not anticipate having to experience.
A will is not a document that can handle every aspect of your estate equally well. Many people I talked with assumed that if you include something in your will, it automatically becomes the controlling element regarding that subject. The assumption is that simply including something in your will means that a court, creditor, family member, or another person must follow whatever your wishes are. However, there are certain parts of your life that your will has no impact over. In many ways, you need to understand what the will cannot control and what the will can control.
What does your will not have the power to control after your death?
Many of you reading this blog post have life insurance of one type or another. Whether it is a whole life or term policy, the reality is that a life insurance policy and its naming of a beneficiary or beneficiaries takes precedence over anything created in a will. This means that you cannot name a beneficiary in your life insurance policy and then turn around and promise the policy's funds to another party In your will. The life insurance policy takes precedence over a will no matter the order in which the documents or policies came into being.
Next, let's assume that you were injured in an automobile accident and agreed to or were ordered to have the insurance payout set up through an annuity. Or, as a matter of your retirement savings, you invested through an annuity. No matter how you came into ownership of an annuity, you need to know that the terms and proceeds derived from the annuity do not go out of fashion simply because you have drafted a will whose terms differ from the annuity. Whatever you have included in that annuity takes precedence over your will.
Likewise, if you have retirement savings mechanisms like individual retirement accounts, 401(K), or a pension, the language naming beneficiaries in these documents controls what happens after you pass away more readily than a will. This means that you need to be careful of who you named as a beneficiary in any retirement account that you have. This can be especially important in a situation with a pension that may only be transferred to your spouse. Then any benefits that you have accumulated through the pension go away after that. Working with an experienced retirement planning advisor can help you maintain these funds in your family rather than have the benefits recede into the pension once you and your spouse have passed away.
Just as a caution, if you have recently remarried, you need to go through any document, account, or insurance policy and verify who is named as a beneficiary under that policy. You would not want to be in a situation where you pass away only to have failed to update a life insurance policy, for example. Imagine passing away with your ex-spouse listed as the beneficiary rather than your current spouse. That could be a recipe for disaster because your current spouse may have been planning to rely upon that insurance policy proceeds to sustain them after you pass away. Regardless of any plans you have for planning your state through, and you will need to update and verify the beneficiaries on any insurance policy are accurate from time to time.
The basics of a will do not have to be complicated.
For many of you reading this blog post, drafting a will does not have to be complicated or time-consuming, but you still need to think through the process just the same. By working with an experienced estate planning attorney, you can rely on them for guidance in an area that you may be unfamiliar with. There is nothing wrong with asking for help. I'm sure you have been told that many times, but it can be difficult to take on advice from a person, especially if your personality is to want to do it yourself. While there are many areas of your life where doing it yourself makes sense, I do not think that estate planning and drafting is one of those areas.
Many of you with relatively simple estates do not have to put into effect a great deal of planning or time when it comes to determining how you want your property divided after you pass away. Well, that doesn't mean you can spend half a second when it comes to planning your state; it does mean that the whole process does not have to take a great deal of time to think out and think through. For example, determining that you want to leave all your property to your spouse and then, after their passing, to your children in equal shares would be a typical way of dividing property. An attorney can help you ensure that their right language is utilized and that your wishes are followed through with, even when it comes to a relatively simple state plan like this.
Again, this is where you want to be careful about using online will builders or software picked up from an office supply store. Either of these methods for drafting a will may allow you to select invalid language or provisions no longer the law. As with any other area of the law, estates love updates over time. For example, you need to be sure that you are doing so based on the current set of laws when drafting a will. Since our state legislature meets every two years, it is possible that Texas law, when it comes to drafting a will, may change substantially from one year to the next. Unless you are sure that you are operating under the most up-to-date laws regarding estate planning, you may be in for a rude awakening.
Drafting a will can help you avoid probate.
When you have a property in your name but do not have a will drafted, then the state of Texas has laws in place that determine how their property passes on. Immediate family members act as beneficiaries. If you pass away without a will but have children and a spouse, then you can expect your property to pass along to these folks. This may be exactly what you want. In that case, you may be wondering what the benefit of having a will is when the laws of Texas will see to it that your wishes are more or less followed anyway.
This is where drafting a will is very important. Without a will, your property may eventually wind up with the people you intend the property to, but your estate must first go through the probate process. A probate court adds ministers' estates for people who died without wheels. While it is possible that your state must still go through probate, even if you have a will, you are not having a will virtually guarantee the probate process to be necessary if any property of yours must be divided.
This process can take a relatively long time and requires attorneys and the courts to get involved. Again, while you may not suffer the consequences of not having a will, your family surely will. Imagine a scenario where your loved ones had to spend years waiting to get the property and assets that they ordinarily would have been able to receive immediately had you drafted a will.
When it comes to what you should avoid putting in your will, there is no better party to assist you in answering these questions than an experienced estate planning attorney. While it may not excite you to consult with and ultimately hire an estate planning attorney, I can tell you from experience that doing so is not only responsible but extremely prudent. Doing so reflects an understanding that the best interests of your family or served by getting the will drafting process correct the first time.
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 planning attorneys offer free of charge consultation six days a week in person, over the phone, and via video. Free-of-charge consultations with one of our estate planning attorneys can not only help you learn more about estate planning but how your family circumstances may be impacted regarding the filing of an estate planning case.