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I Will, I Will
Author: Robert Hohenberger
If you're thinking about writing a will, I'll wager you're about to take a long trip or undergo surgery -- right? Otherwise, you'd rather avoid anything that forces you to contemplate your own mortality.
But maybe you don't need a will. If your entire estate consists of . . . well, nothing, and you have no family or friends, then you're off the hook. But if you have parents, a spouse or significant other, children, grandchildren, or friends, then you have reason to write a will. Couples who have children from a previous marriage need equitable wills. Even if your only loved one is a pet, an institution, a church, a charity, you have reason to write a will.
If you die without a will, the State of Texas will write one for you. It's called the Law of Descent and Distribution. Your estate is divided in a particular order between your relatives and their descendants. Settling the late Howard Hughes' estate took several years and millions of dollars in legal, because no valid will was found.
Can you just go online and download one of those one-size-fits-all things? Not unless you're willing to risk leaving complications for those you love. My advice is to let a lawyer handle the writing of your will. Attorneys are trained to ask the important questions most people never consider, such as:
  • Who should I choose to be my executor? My backup executor?
  • Do I need a testamentary trust for grandchildren in case one of my children pre-deceases me?
  • Should my life insurance be paid to my estate?
  • Do I want to put words of advice in my will?
  • How can my will handle retirement and pension payments to my named beneficiary?
  • The person making the will (called the testator if male or testatrix if female) signs the will in the presence of two witnesses and a notary. Then the notary swears in the parties, who all acknowledge their signatures before the notary.
    This self-proving will is good to go when offered in probate even if the witnesses and notary are also deceased. Unless a more recently dated will can be found, this will is admitted just as if God himself had sealed it. The named executor/executrix is qualified upon taking the oath of office. The only other court action required is the filing of an inventory and appraisement of the estates assets and liabilities. A complete probate procedure can be done in as little as thirty days.
    So what about those living trusts you've heard about on radio and TV commercials? The fact is that these trusts can be great for persons of wealth, but they're too complex and costly for most of us.
    Of course, you can always write your own will in longhand, making certain there are no printed instructions or blanks to be filled out. This instrument (called a holographic will) must be in the testator's/testatrix's own handwriting, and it does not have to be witnessed. However, to probate it, two witnesses must testify, under oath before a judge, that they are familiar with the deceased's handwriting and that this will is written in that handwriting. Those witnesses cannot be related to the deceased nor can they be beneficiaries in the will. Something that starts out so uncomplicated can become a quagmire.
    Recently, I probated a woman's holographic will. She had left everything to her husband, but she omitted appointing an executor, and made no mention of a bond. Her no-frills will required dragging two neighbors to court to swear they recognized the woman's handwriting. Then, I had to ask the judge to appoint the husband as administrator, without bond, with the will attached, so that someone had the authority to settle the deceased's financial affairs.
    In another case of best-intentions-gone-wrong, I attempted to probate the will of an educated professional who had figured he could save a little money by using a form bought at the office supply store. In the will, he left everything to his wife and appointed her to be his independent executrix. When I presented the will to the judge for approval, he shocked the wife and me by telling us she would have to post a bond (a costly insurance premium) unless her three grown children would agree to forego it.
    As often happens in matters of estates, the children wouldn't help mom, and a bitter family feud ensued. Only when a wealthy friend of the husband stepped forward, paid off the mortgage, and banged a few heads together, did the case get settled.
    Yes, the settling of an estate can be a nasty business, rife with unexpected problems. Do yourself and your loved ones a favor: see a lawyer and get that will written. Then go ahead and enjoy that trip!