SPOILER ALERT: Most lawyers can draft a will. The requirements for a valid will are written in a statute and there are a lot of “forms” out there. As a matter of fact, you can draft your own will – just go to LEGALZOOM.
AND NOW FOR A LITTLE GALLOWS HUMOR: If you draft your own will, you will not know whether you made a mistake – because when the mistake is discovered, you will be dead! (ha-ha). Someone else will have to clean up your mess.
GETTING SERIOUS
A will is a rather serious document. It disposes of all the assets you have at the time of your death. And since no one can ask you “what you meant,” it has to be what it reads to be – no second guessing. So, making sure that it is clear, and does what you want it to do, is pretty darn important.
If for no other reason than assuring clarity, having an attorney draft you will is a very good idea. Two sets of eyes (your eyes and your attorney’s eyes) are better than one set of eyes. Does it say what you think it does; does it say what you want it to say.
BEYOND GOOD DRAFTSMANSHIP
Beyond draftsmanship, when choosing an attorney to assist you in drafting a will, consider the following:
1. Does your attorney probate wills in addition to drafting wills? We are currently probating a will that was prepared by another attorney. The draftsman failed to have the will’s witnesses execute “self-proving” affidavits at the time of the execution of the will. Because of this, to have the Court review and approve the will, it is necessary for one of the witnesses to actually come forward and testify in open court. And, to our chagrin, guess what, the witness came down with Covid-19. The hearing before the probate judge had to be delayed and delays are expensive, and in these days of “social distancing,” lengthy. A lot of time and expense could have been avoided if only the draftsman had secured affidavits from the witnesses when the will was executed. We can only assume the draftsman did not know better.
2. Does you attorney understand real estate law? Here in Texas, a lot of wealth is tied to real estate holdings. So, in addition, to being able to draft a will, your draftsman needs a good understanding of real estate law. If your estate plan envisions a living trust, your real estate has to be conveyed (deeded) into the trust. And there are tax and management ramifications when property is held in a trust. You would be shocked how often property is not properly conveyed into trusts; and how often the ramifications of management of property held in a trust are not considered.
3. Does your attorney understand tax law? As of now, the federal estate tax laws provide for a rather high estate value exemption – but that could always change. Also, the choice of ownership structure for your real estate (individual ownership, trust ownership, corporate ownership) can have ramifications on the annual property taxes (homestead exemption) and income tax rates.
4. Does your attorney have a working understanding of the probate laws of other states? In every state where you own real estate, some sort of probate proceeding will be required. These are referred to as ancillary probate proceedings (in addition to the probate proceeding in the state where you died). Depending on the state, they can be simple, or they can be complicated. For those states where the procedure is complicated, establishing a trust or corporation for the real estate owned by you may save a lot of time and expense for your heirs.
5. Does your attorney understand your family dynamics and the special needs of your family? Many families have children or other close relations for whom special plans need to be made; and many people want to make sure that institutions and charities they cherish are properly endowed. Importantly, determining executors and trustees should be a task carefully undertaken – these are positions of responsibility and the selection of responsible individuals who have the time and wherewithal to undertake these responsibilities is not a task to be undertaken lightly. These are not honorary positions – they are jobs.
6. Did your attorney encourage you to execute ancillary documents? You should also have a durable power of attorney prepared that names a responsible and willing individual to manage your assets during your final illness; a medical power of attorney that names a responsible and willing individual to make medical decisions for you if you are so ill that you are unable to do so; a HIPPA (Health Information Privacy Protection Act) release that enables medical professionals to share you medical history with close family members that will be tasked with your care. If you are not getting these instruments put together at the same time you execute a will, your work is only half done.
IN CONCLUSION
We are a full-service law firm with a significant wills, trusts, and probate practice. When it is time to draft your will, we work with our clients to assure that all needs are considered and addressed. You are only going to have one will – might as well get it right!
by Jack M. Wilhelm
Edward Wilhelm and Jack Wilhelm provide tremendously high value legal assistance to a large number of very desirable clients.
THE WILHELM LAW FIRM, 5524 Bee Caves Road, Suite B5, Austin, TX 78746; (512) 236 8400 (phone); (512) 236 8404 (fax); www.wilhelmlaw.net
DISCLAIMER: The information on this site is not intended to and does not offer legal advice, legal recommendations, or legal representation on any matter. You need to consult an attorney in person for legal advice regarding your individual situation.
