Frequently Asked Questions About
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Do I need a Will?
Generally speaking, most people benefit from having a will. Having a valid will in place at your death can help make the administration and distribution of your estate easier for those who are left behind. Most of us are concerned (at least to some degree) about what happens to our property at our death and in whose hands our property ultimately falls. It is because of this concern that a will is a good idea for most everyone who has capacity to make one.
What exactly is a will?
A will is a document which controls the passage of your property upon your death. In Texas, there are three basis types of wills — (1) the attested or formal will, which is in writing and is witnessed (by two or more witnesses); (2) the holographic will, which is wholly in the testator’s handwriting and signed by the testator; and (3) the nuncupative will, which is an oral will (these are rarely used because they can only be done in certain circumstances and they only apply to specific items of tangible personal property [not real estate, bank accounts, etc.]). All of these can be valid in Texas if the requirements of the Texas Probate Code for each type of will are met. Generally, the most effective wills are the attested or formal wills.
If I write my wishes down on a piece of paper and sign it, will that qualify as a will?
Maybe. As stated above, it is possible that a will written wholly in the testator’s handwriting and signed by the testator can be valid and admitted to probate in Texas. Many problems can arise with this type of will, however. It may not be recognized as valid by the court. It may fail to dispose of all property. It may fail to take advantage of efficient and cost-saving procedures available if a proper, formal will is used. And it will cost more to probate the will than a proper, formal will. For these reasons, holographic wills are not recommended.
I do not have many assets, so I think a will is unnecessary for me. Am I right?
Not necessarily. You do not know what your financial condition will be at your death or what property you will own at your death. Also, your family situation may make having a will crucial to your loved ones. For example, if you are married with a minor child, having a will can make all the difference for your survivors, even if you have few assets. On the other hand, if you have little property, are unmarried, with no children, with both parents alive, and you want all of your property to pass to your parents, you may not need a will. These are just examples. Ask an attorney about your situation to see how important it is for you to have a will.
I set up all of my assets so that they pass by beneficiary designation, or are payable on death to certain persons so I can avoid the hassle and expense of doing a will. Is this a good plan?
Maybe, but probably not. A plan like this may work in some situations, but in most cases it fails to cover many contingencies which may occur, with disastrous results. For example, if the person you designate on a beneficiary designation or signature card dies before you do and you do not change the designation, the property could go to someone you don’t want. A well-drafted will covers many more contingencies. Also, if the person who ends up with the property is a minor or an incapacitated person, insurance companies, brokerage firms and banks will not pay proceeds to or transfer assets without a guardianship or trust. A well-drafted will may contain a trust for minors and incapacitated persons, but without that trust an expensive, cumbersome guardianship is the result. There also are potential negative tax consequences of using only beneficiary designations or pay-on-death designations to pass property at your death. For example, if your estate is a taxable estate for federal estate tax purposes, a well-drafted will can provide for creation of a trust after your death to save taxes. If you do not have a will, your loved ones could end up paying estate tax which may have been avoided if you had a properly drafted will.
I have been diagnosed with a terminal illness, should I make a will now?
If you know that you have a terminal condition and you are concerned about the disposition of your property or the care of loved ones after your death, you may want to execute a will as soon as possible while you are well enough and have the capacity to do so. These situations are very personal, and if you find yourself in this position, you should consult an attorney to discuss your options with you.
I just married for the second time. I have children from a prior marriage. I would like to make sure that a portion of my assets go to my children. Would having a will help me in this situation?
Yes. If you are concerned about making sure that some of your property goes to your children in this situation, you can take certain steps in a will to help accomplish your goals. For example, you could make a gift of a certain amount of cash or a certain percentage of your estate to your children, outright or in trust at your death. (However, there may be negative tax consequences in doing this.) You could also leave property in trust for the benefit of your spouse with what is left of the trust (the remainder of the trust) passing to your children at your spouse’s death. This type of arrangement has potential problems as well. These are just two examples of steps you can take in this situation. However, this is very personal and the appropriate provisions to include in your will depend on your family dynamics and your estate planning objectives. Having a property drafted will can help. You should contact an attorney to assist you.
How do I go about doing a will?
There are many estate planning products on the market today that represent to consumers that legal documents such as a will may be prepared on a home computer without the help of an attorney. In some cases, these products may work. However, many of these products are not state specific, and therefore, do not meet the specific requirements for the state in which the testator resides and, ultimately, where the will is offered for probate. (Even though the form may be “valid in all 50 states,” it could fail to include provisions required by Texas law for low-cost, efficient administration of your estate.) The best way to go about doing a will is to contact an attorney in your area to assist you. Prior to meeting with an estate planning attorney, you should think about how you would like to leave your property at your death, and who you would like to designate to handle your estate after your death.
How much does a will cost?
This question is difficult to answer because the complexity (or lack thereof) of each individual’s situation will determine the amount of time that is necessary to prepare the will. Many estate planning attorneys bill hourly for their services while others may work on a flat-fee basis. When you hire an attorney to assist you in preparing a will, make sure that you fully understand the fee structure and that you are comfortable with the fee arrangement. If you have questions regarding the fee or the fee arrangement, you should always ask.
I heard that a living trust is better than a will. Is this true?
A living trust can be used as an alternative to a will. In most cases, these trusts are more expensive and complicated that wills. Texas has relatively simple and inexpensive probate. For these reasons, most Texans can achieve their estate planning goals cheaper and simpler with a will. However, there are times when living trusts are appropriate and a better solution than a will.