Last Will & Testament
What is a Will?
A Will is the part of your estate plan which states how your "probate assets" are to be distributed after your death. (Your Will does not affect "non-probate assets," which are paid according to a beneficiary designation that you make. Examples of non-probate assets typically include life insurance, retirement plans and benefits, "pay on death" bank accounts, items held as joint tenants with right of survivorship, assets held in trust, and annuities.)
A Will can also:
- Specify who will care for your minor children
- Minimize or eliminate estate taxes
- Disinherit undesirable heirs
- Make gifts to close friends, loyal caregivers or favorite charities
- Establish a trust to hold and manage funds for a child who is too young or irresponsible to manage the funds himself
In short, a valid Will puts you (rather than the State) in control, and avoids many of the problems associated with dying without a Will.
What if I die without a Will?
If you die without a Will, Texas has laws that specify how your estate will be distributed. Unfortunately, these laws, called "intestacy statutes," may not match your desires. For example, most people want to leave their entire estate to a surviving spouse, but the intestacy statutes may result in part of your estate passing directly to your children. (This can be a serious problem if your spouse and children do not get along well, or if the children are too young to responsibly manage their inheritance.) Also, there is no provision in the intestacy statutes for gifts to a close friend or your favorite charity. Finally, there is no way for you to disinherit someone under the intestacy statute, so a member of your family with whom you do not get along may become an heir of your estate.
Dying without a Will can also make the final distribution of your estate more costly and time-consuming. In such cases a lawsuit is frequently required to determine the proper heirs. In addition, the Court may have to appoint an "administrator" to manage your estate, and without a Will you have no say in who may be appointed. Obviously this can be very expensive and frustrating for your family.
Can I prepare my own Will?
Yes, the law allows you to prepare your own Will. The law also allows you to perform surgery on yourself. However, neither process is recommended. The perils were humorously explained in the 1850's by Lord Charles Neaves, a Scottish lawyer, judge and writer, in his poem "The Jolly Testator Who Makes His Own Will."
Here are a few reasons why the small amount of money you might save by preparing your own Will does not justify the risks.
First, if you are married you will need a strong grasp of Texas community property law. This is not as simple as determining whether you bought the asset during the marriage, or whether your spouse's name is on the account, deed or title. This area of the law is quite complex, and unless you fully grasp its nuances it will be easy for you to incorrectly describe your bequests. Such errors can force your spouse to make unpleasant choices after your death, or may require court intervention to resolve.
Second, over hundreds of years the law has developed specialized terms to describe specific legal concepts. If you fail to use the correct terms, or if you use them improperly, you will create ambiguities that may cause family friction after your death. Again, costly and time-consuming court intervention may result.
Finally, a self-made Will may omit certain terms or formalities that are designed to simplify and streamline the probate process. Many of these terms and formalities are specific to Texas law, and thus are not included in "do-it-yourself forms" which are prepared by lawyers in other states and sold over the internet or in office supply stores. At best, your failure to include these terms will make it more complicated to probate your Will; at worst, such failures could wholly invalidate your Will.
In summary, a self-made Will might be better than no Will at all, but it is typically no substitute for a Will professionally-crafted by a skilled estate planning attorney and designed specifically to fit the particular needs of your estate and family situation.
Can I change my Will?
You may modify your Will at any time you choose, provided that you are still mentally competent to do so. However, you should not under any circumstances make handwritten, typewritten or any other changes to your Will. If you make any changes to your Will, you will void it. If you decide to change your Will, you must prepare a new Will or a formal Codicil to your existing Will.
Please note that it is not necessary to change your Will to reflect a change of name by someone named in your Will. Also, we design our Wills to plan for various contingencies (such as the death of a beneficiary or an executor) so you will not have to change your Will in those situations.
Do I have to file my Will for record?
No. A Will has no legal effect until you die, so there is no point in recording it. You should store the original Will in a secure place, such as fireproof safe. (In most cases, we do not recommend storing your Will in a safe deposit box because your bank may seal it upon your death and your executor might have difficulty getting access to it.) You can leave a copy of your Will in a place where it will be easily found after your death with a note indicating that it is a copy and identifying the location of the original Will.
Who should I name as my executor?
Ideally your executor will be a trusted family member or friend who is intimately familiar with your personal affairs, including your family relationships, your assets and debts, and your record-keeping system. One thing you can do to help your executor is to prepare a letter of Advice & Instructions [PDF].
What's the difference between a Will and a Living Will?
A Will and a Living Will are completely unrelated documents.
A Will specifies what happens to certain property upon your death. It has no legal effect whatsoever as long as you are alive.
A "Living Will" is a common name for what the law calls a "Directive to Physicians." A Living Will is not really a Will at all because it has nothing to do with disposing of your assets, and it terminates upon your death. Rather, a Living Will specifies whether to withhold or withdraw life support when your physician determines that your death is imminent and unavoidable.
Concluding Remarks
It's easy to put off doing a Will, or to convince yourself that you can do your Will yourself. However, since the moment of your conception you have had an appointment with death, and someday your family and friends will have to deal with your affairs. At our Killeen estate planning law firm, we can help you minimize the difficulties they will face by attending to these matters now. Please download our Estate Plan Worksheet and call us today to schedule an appointment.