DALLAS — We’re almost ‘dead ready’ as we finish the Death Checklist we started a year ago. Admittedly, I procrastinated with wills. Don’t judge me. You probably did, too. It’s estimated that only 32% of us have a will right now.
And If you’re wondering who really needs a will, here’s one emphatic answer from Texas Tech Professor of Law Gerry Beyer:
“Absolutely everybody. Everybody needs a will. People have a lot of misconceptions; they think ‘Oh, I don't have much property.' But you still may care who gets your heirloom items…the plates from grandma, the gun from grandpa, the coin, the family pictures, the photograph albums.
Another big consideration is who gets your children if they become guardian-less minors. Or Beyer explores a will-less scenario with three older children, “The surviving parent dies and there's three kids. Well, each one owns one-third of every item. One-third of every fork, picture, pair of underwear, pants, couch, TV, whatever. So, it can cause huge family problems.”
Ways to make a will
Beyer has seen plenty of those sorts of problems over the years. He is in the national Estate Planning Hall of Fame. This hall of famer is offering free advice and is not seeking our business, so he’s a great expert to ask: Who should we turn to to prepare a will?
Beyer was not crazy about younger Jason’s idea years ago to craft a will using an inexpensive online program.
“A lot of these online programs are getting much better, but they can't account for everything that an actual attorney looking at your precise situation would do," he said. "As lawyers, we consider people who use the self-help methods to be nothing more than generating more income for us to straighten out the mess they create later on.”
Some of you might have gone another budget-friendly route of paying a little extra for your workplace benefits to get access to legal help that includes attorney-assisted will preparation. I tried that years ago, too.
Beyer says that is certainly better than just going it alone and trying to craft a will.
“I love your idea about the benefit programs if you have that available to you," he said. "You may not be getting an estate planning expert, but you're going to get someone who knows a lot more than you do about the process of doing it. You know it's like saying you certainly have the ability to remove your own appendix without going to the hospital if you want to, but it's not really a smart idea.”
What kind of lawyer?
Ouch. Point taken. Speaking of pain, Professor Beyer recommends, especially for complex wills, that you spend the hundreds, maybe even thousands of dollars, to get the help of an attorney who is board certified in estate planning and probate or an attorney who is listed by the American College of Trust and Estate Counsel.
“I have seen way too many attorney-drafted wills that had issues in them because the person who drafted it was not an estate planning expert," Beyer said. "They’re a criminal lawyer or they do something else and don't realize the intricacies that sometimes are involved with the will.”
Don’t neglect to make a will if you're strapped for cash! “Having some kind of will is better than none at all”
Some people might just keep putting off making a will if they think they can’t afford it. That’s probably why Business Insider reports that every expert they talked to agreed that “having some kind of will is better than none at all”.
Professor Beyer concurs that something is better than nothing when it comes to a written estate plan. While he cautions that wills crafted in certain ways “could cause a lot of problems”, he acknowledges that, “If you don't have a will, that is almost always going to be more difficult”.
There are online programs that do offer help from an actual attorney. AARP suggests some specific online will writing programs that are either free or low-cost, along with guidance on when you might opt instead to seek an attorney for help with an estate plan.
Generally, the more substantial your assets are, or the more complex your business or family arrangement is, the more likely it is you might benefit from having the help of an estate planning attorney.
Business Insider also has a handy chart that offers some ideas for who might need (and who might not need) a pricey legal specialist to help draw up a will.
You could also just make a FREE, simple handwritten (and hand-signed) will
Some people opt to create a holographic, or handwritten, will. It is perfectly valid in Texas if it is done right.
“You don't need…any witnesses or notarization or any formalities, if it's all written in your handwriting," Beyer said. "So, the answer is yes, you certainly can do it. And perhaps a very simple handwritten document would be better than nothing. I mean, just assume you wanted to write a will and you say, ‘I leave everything to my spouse’ and sign it or ‘I leave half to one child, 25% to the other and 25% to the other’ or ‘I leave my car to someone.' That is way better than dying without a will. However, probate judges contact me on a weekly basis, showing me handwritten documents that are inconsistent, confusing and cause all sorts of time and expense."
So, again, this free and simple option for creating a will can be beneficial, but you want to make sure your intentions are handwritten and clear. Also, you want to write legibly. It does no good to write out a will if no one can agree on exactly what it says. Texas Law Help has detailed guidance on handwritten wills and even offers some sample handwritten wills that are instructive.
Whichever route you choose, Beyer advises that you give careful thought and make comprehensive notes about what you want to leave behind, and to whom. After that, choose whether you will use a guided program or an actual attorney. Then, get it done!
And then…Beyer says check your will at least once a year to see if it needs updates.
“You need to review it because things change," Beyer said. "People are born, people die, people get married, people get divorced, (or) you'll have a change of feeling towards various people. The laws could change. That could be important. The amount of property you have, or what you own could change.”
Also, you might think that something that is nicely typed up might stand up better in court, but Professor Beyer says otherwise.
“A handwritten will actually has a better chance of standing up, because the person actually wrote the whole thing as opposed to just a signature, which could be easier to forge," he said. "On the other hand, if you're talking about having interpretation construction issues, then the handwritten will definitely causes more problems…interpretation…construction…figuring out what actually should be done.”
Also, Beyer says you really want to use particular language when writing out a will by hand: “I want an independent administration without bond”.
Texas Law Help has similar advice and expands on what it means:
Write who you want to serve as the “independent executor.”
This is someone you trust to show your will to a court, pay your debts, and give out your belongings.
They can be the same person who receives your belongings.
Write that you want your independent executor to “serve without bond.”
Note: To “serve without bond” means that your “independent executor” will not have to give money to the court for a bond.
Courts usually require a bond to make sure money is not stolen or misused. But if you trust this person, using this language makes it easier for them to give out your belongings.
As you are naming who gets what make sure you think of who will get the…responsibility
When you create a will, you need to make sure it is stored in a secure place and that someone or multiple people know there is a will and how it can be accessed. One person who should know is the executor of your will. That is the family member, friend or professional you designate to handle your affairs and execute all the wishes in your will.
Professor Beyer is not a great salesman when it comes to encouraging someone to be an executor of an estate.
“It is not an honor, it is a burden," he said. "It is subject to a lot of emotional hassle and liability exposure. I tell people that if someone asked them to be an executor, their gut reaction should be what I call ‘the cocaine rule’, which is ‘Just Say No’ unless you're doing it out of love and affection and can't get out of it. Or you're a professional and it's your job like a bank trust department or a trust company. Yeah, I wouldn't do it. It's a real hassle…lots of responsibility. So, be sure to check with the person first. And get someone who is willing to do it and has the skill set and the time to do it right.”
Wow. That gives an idea of how much responsibility it is. That being said, if you really care about someone, this may be something you are very committed to getting right for them if they ask you. I am listed as the executor for two special people in my life.
Kiplinger has some good advice about choosing the right person to be an executor.
That’s a lot about wills. Now, do you need a trust?
Some people who are setting out to craft an estate plan may be well served by creating a trust.
Beyer explains some scenarios that may call for a trust.
“A trust is normally used when you do not want to give the beneficiary -– the person you're leaving the property to -– full control over what they can do with the property," he said. "So, if you have minor children, a trust would almost be essential. Or maybe children under 25 or 30, given that they may not have the maturity or skill set to manage a property at the time. Or maybe you have a disabled child, or maybe you have a partner that is not as savvy as they could be. So, a trust puts the management of the property in the hands of a trustee who again should be a skilled, financially savvy person who can then make sure that property is preserved…used for proper purposes…(so) they (the people you leave property to) don't blow it, etc.”
Here is more info on wills and trusts. This is all a lot to think about. But not doing so may cause a lot of unnecessary delays, emotional pain, hardships, fights and headaches for the loved ones you leave behind. So, get this done now if you haven’t already. Because later might be too late.
More resources for wills and trusts
Texas Law Help has a lot of resources (in plain language) to help you through the process of creating an estate plan. Additionally, Texas Law Help posts this calendar of upcoming legal events and clinics happening all around the state that include estate planning sessions.
If you are struggling with the cost of creating an estate plan, Professor Beyer has some recommendations: “Going to legal clinics–most cities or areas in Texas have some sort of legal aid clinic. Perhaps you're in one of the larger cities with a law school…they may have a clinic to help you."
The Texas Legal Services Center helps underserved Texans throughout the state.
Additionally, the State Bar of Texas lists several statewide and regional organizations here that offer legal help to people who can’t afford an attorney.
If you want to go a lot deeper on wills and trusts, Professor Beyer says you can choose from a number of articles, podcasts, and videos made by the American College of Trust and Estate Counsel.
Finally, the previous entries on the ‘Death Checklist':
We started with health coverage and powers of attorney.
A powerful choice: Choose beneficiaries or payable on death designees.