In my opinion, one of the most important things that a person over the age of 18 can do for himself, herself, or their family is to draft a valid will. You may be reading this as an adult living in Texas with no desire to do so, however. You may be thinking about your life and your property and debts and consider yourself to be someone who does not need to have a well-drafted. Either you think it will cost too much money, take too much time, be worthless for a person like you with that much property, or something in between. In my years as an attorney, I have heard a whole manner of excuses provided by people who do not want to have a will drafted.
Whatever your rationale is for not having a will drafted for yourself I would respectfully ask you to reconsider. There are many benefits to having a will created for you even if you do not have much in the way of property or any debts. More than anything else, having a will in place when you die provides you with autonomy over your life even after you have passed away. Beyond the fact that none of us know exactly when we will pass away, they will offer some degree of protection for ourselves in our family when it comes to our property and debts.
Rather than deferring to a probate court judge to make decisions with our property or our lives, this strategy of estate planning can surely help you and your family properly grieve their loss. If you were to pass away suddenly wouldn't you want your family to be able to grieve your loss properly rather than spend an inordinate amount of time being worried about finances or making sure that your estate is being cared for? I know that I certainly would. As a result, drafting will is a simple process that can help too put you on solid footing before your passing and will help your family deal with the emotions of your passing once that has occurred.
Be careful how you draft your will
One of the interesting phenomena that have occurred as a result of this pandemic is that much of the services that we utilized in our daily life have been pushed to online usage. This was a trend before the pandemic but the past 16 months have caused us to speed up our embrace of technology when it comes to a whole host of services. The legal field has not been an exception to this rule. Let's discuss how seeking legal services online can harm you regarding a will.
Having a will drafted online may appear to be something that is both quick, easy, and inexpensive compared to working with an estate planning attorney. Generally speaking, if you were to tell me that something was quicker, easier, and less expensive than an alternative I would most certainly consider the quicker, easier, and faster alternative over the other option. However, the devil is in the details as it so often is. The problem with going to an online service to have your wheel drafted is that while it may save you some money in the short term it could end up costing you a great deal of money in the long term period
Let's suppose that you go to one of the many online services for having a well-drafted. You could enter your information and have the process started immediately. What information do you have and putting it into the computer? This means that they will be rolling up on your information and not able to double-check your inputs at all. From this. Alone, you have pretty difficult setup circumstances to have to deal with when it comes to drafting a will.
Even if you have all your information available when it comes to creating a will that still does not mean that knew will be ready to go. A basic will main leave out fundamental aspects of your estate. You don't know what you don't know and drafting a basic, boilerplate will may not be what is best for you and your family. Rather, I would recommend that you seek out the advice of an experienced state planning attorney to have your will drafted.
Simply spending an afternoon and putting data into an online resource in having a will produced for you can result in a valid and enforceable well being created. On the other hand, you may find that the money you spent on drafting this side of will is not money well spent. Just like with a divorce or child custody case, you will find that unless your will is declared to be valid that it is not worth the paper that is printed on. As a result, you must be able to include important information in your will to have your wishes accurately reflected in the document.
Using a basic and boilerplate template as a starting point is not a good move for you when it comes to your will. The reality of using online services to have your will drafted is that important information could be left out, not completely included or mistakes could be made in the document overall. This would result in a mess of a situation where you don't even know the mistakes that were included. There will be no one to double-check the work that was done including anyone who witnesses the signing of the will as well as the notary who notarizes the document after its completion is achieved.
Rather than taking a risk on a play that is intended to save you money in the short term, you should instead consider the advantages of enlisting the help of an experienced attorney to help you draft your will. In the best of situations, you will hire an attorney who will diligently work with you, talk to you about your options and do a good job of performing research in tier life to determine how best to serve you and your family. However, it is up to you to be able to locate an attorney that you trust so that you can see the benefits of having it will be drafted by a human being rather than by a computer program.
What can be done if your will is declared to be invalid?
The worst-case scenario for having a well-drafted is to have that world declared to be invalid. There are a set of circumstances that could come into play when you pass away which involved having a judge decide about whether or not your will is valid and enforceable. One example of a situation is where the executor of your will takes the will to probate court to have it probated. The other involves a relative of yours disputing the validity of the will and then challenging its will it be in court.
In the end, a court could conceivably declare your will to be invalid. As we just finished discussing in the section of today's blog post before this one, this may mean that your wishes will not be honored by the court in that the laws of intestacy will be followed rather than your desires as based on your will. This is a worst-case scenario and one that we all hope to avoid. However, if this is the situation that you find yourself in regarding a loved one is there any hope of having some degree of enforceability with your will?
Even if your will is declared to be invalid then there is a chance that some benefit can come out of the document. For example, if you are a Texas resident then a will can be declared as a Community property survivorship agreement if your situation follows several circumstances based on Texas A state law. This is all based on a legal case called the Estate of Lovell.
In this case, a husband and wife signed a joint and mutual will that they got online. Sometimes, these are called mirror wills where a husband will be identical to their wife's will except for their names being transposed and switch where applicable. Like many of us, the husband and wife, in this case, were probably motivated to go to an online source for this type of work due to cost and ease of use. Sometimes, even the best plans that we come up with don't go exactly as we envision them. Just because something online seems too good to be true doesn't necessarily mean that it is. Typically it is the opposite where what seems too good to be true most likely is.
As you probably guessed, a probate court did determine that the will of the love of family was not valid. However, a certain portion of the will became most important for this couple. Specifically, the will included a section that stated that the husband and wife did want to execute a joint in the mutual will that leaves to the surviving spouse all property of the first party to die, and once both spouses are deceased all property will be left to their children equally.
The following paragraph in the well stated that they had a desire that the survivor out of the two of them would own all real property. The husband and wife did not have the will witnessed by any persons as is required under Texas law for a wheel to be valid. 2 disinterested parties are recommended to witness a will signing. For those of you reading this, it is recommended and indeed necessary for you to sign your will in front of these two witnesses.
In the above case, the wife died first and the husband attempted to take the will into probate court to have it admitted. A child of the wives contested the will because there were no witnesses to the signing of the document. This was a pretty simple challenge that was agreed to by the court. What happened next was that the attorney for the husband offered the invalid well as what is called a Community property survivorship agreement. This is a unique arrangement under Texas law that would presumably allow for the failure will to be upheld as a survivorship agreement regarding certain types of Community property.
As it happened, the probate court did determine that the invalid will was a valid Community property survivorship agreement. Despite the fact, the will was not valid the Community property survivorship agreement took force and the husband was determined to be the owner of the wife's property. Again, the wife's son appealed that ruling but the determination of the trial court was held up by the appeals court.
There are a handful of basic requirements for a will to be declared valid in Texas. If we go to the Texas estates code we will learn that a will must be in writing, signed by the person whose will it is, or by a person who has authority to act on behalf of the person whose well it is. Two or more witnesses over the age of 14 must witness the signing of the will and be willing to put there are signatures on the document as well. As we touched on a moment ago the fact that there were no witnesses to the will made it pretty simple that this was not a valid will in the eyes of the family court judge.
What exactly is a Community property survivorship agreement?
While most of you have likely heard of a will I'm willing to bet that most of you have never heard of a Community property survivorship agreement. This is with good reason. Wills are much more commonly discuss in our society than Community property survivorship agreements. A Community property survivorship agreement is an agreement between you and your spouse that creates a right of survivorship in Community property. Basically, at anytime you and your spouse can agree that between yourselves all or part of your Community property becomes property of any spouse let's survive the death of the other.
There are fewer requirements for a Community property survivorship agreement to be declared valid versus a will. A Community property survivorship agreement must be in writing and signed by you and your spouse to be valid. Having key phrases like “with the right of survivorship”, “will become the property of the survivor,” or “shall pass to the surviving spouse” must be included for the Community property survivorship agreement to be declared valid.
However, even if these phrases, which I like to call magic phrases, are not used a Community property survivorship agreement that otherwise meets the requirements of the Texas estates code can be declared to be valid. The appellate court made this determination which seemingly expanded the ability of a person to argue that a will could in essence be determined to be a Community property survivorship agreement in more cases than you may imagine.
If we look at a Community property survivorship agreement as being more important regarding the spirit of the law rather than the letter of the law this makes sense. The court in Texas ruled that the terms of the failed will that this couple used or pretty clear of their intent to have the other surviving spouse own all of the surviving property that is included in the community estate. This is important because even if you are married and have a will but is declared to be invalid the intent of the will can still be followed in large part because of this Texas appellate court case.
With that said, this does not mean you should totally space out and not take seriously the drafting of your will if you are married. The best-case scenario is to have a valid will that cannot be challenged in court by any person in your life. For your Peace of Mind and for that of your family it is worth taking the time to hire and work with an experienced estate planning attorney when it comes to drafting a will. Doing so is a short-term investment towards your long-term future. While you may not be alive to see the benefits of your drafting an enforceable and valid will your family including your spouse and your children will be. Nobody wants their legacy to be one of mistrust and anger due to a poorly drafted will. Take care of yourself and your family by having a will drafted by a professional.
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 probate and estate planning attorneys offer free of charge consultations six days a week in person, over the phone, in person, or via video. These consultations are not only a great way to learn more about the world of Texas estates law but also about how your family's circumstances may be impacted by the need to draft a will, trust, or other estate planning document.