Texas wills can provide numerous advantages, as we discussed in our last post. To obtain those advantages, you’ll need to avoid certain traps. This post addresses some potential snags that may derail your carefully laid plans.
Poorly Written Wills Cause Expense and Even Failure
So you’ve decided to make a will. You’ve researched the topic online, and maybe you’ve even read this series. It’s awfully tempting to search for wills on the internet—perhaps from sources like LegalZoom or from image searches. Why hire a lawyer when inexpensive or free resources are available? The answer is quite simple—if you rely on forms from the internet, you’re rolling the dice. Usually, these wills take the one-size-fits-all approach. This approach is unlikely to fit your specific needs. Often, form wills leave little room for customization or identification of specific assets. Further, each state has its own rules and requirements for making a will. Form wills cause confusion and expense by including provisions specific to states other than Texas, and often by omitting clauses specific to Texas. A poorly written will can cause greater expense during legal probate proceedings by flubbing or omitting necessary or expense-saving clauses. Form wills may also guide the testator toward improper execution formalities, which can invalidate the will entirely.
In short, if you attempt to make a will without the assistance of a probate lawyer, you’re making a tremendous gamble. If making a will is important to you, don’t leave it to chance.
Preserve the Original Will
Always keep the original signed will in a safe place. If you attempt to probate a mere copy of a will, the probate court will impose more stringent procedural requirements, resulting in increased time and expense. Further, when the original will goes missing, the person offering the will to probate must prove that the testator did not revoke the will.
Don’t Rely on the Testator’s Spoken Instructions
The distribution of a deceased person’s property must follow the written words of the will. With few exceptions, the testator’s oral statements have no legal effect.
To illustrate, let’s say your dad made a will, which divides his entire estate, including the family business, equally to you and your brother. After your dad’s passing, your brother points to the will and claims half of the family business. But dad always said that you’d receive it! He said that before he made the will, and he said it after he made the will. He said it dozens of times, which your brother freely admits. Here’s the thing—unless your dad’s will itself specifically states that you receive the family business, then you and your brother split it 50/50.
Don’t Forget the Residuary Clause
Residuary clauses can be vitally important to Texas estate plans. In essence, this type of clause states, “if I have any other property that I haven’t specifically mentioned in this will, then I want that property to be distributed to the following people in the following percentages…”
You may believe that your will already distributes all your property, so a residuary clause isn’t necessary. Even if you have a fantastic memory and a simple estate, however, there’s still a chance you could forget a vital piece of property. Or, as we discussed in the second post in this series, your estate could be entitled to the proceeds of a survival claim—something you never would have anticipated when making the will. In these scenarios, the unexpected property in your estate would be subject to partial intestacy.
Residuary clauses offer a catch-all solution for the distribution of property you may have forgotten about—or even property you didn’t know you owned, such as unclaimed property held by the Texas Comptroller. Without a residuary clause, the unexpected property would remain undistributed and unclaimed until a costly heirship proceeding is completed, and you wouldn’t have a say in how it would be distributed. You can avoid this result by including a residuary clause in your will.
Take Preventative Action to Help Avoid Disruptive Legal Claims
Wills are invalid when a testator lacks testamentary capacity or is unduly influenced to make the will. For more information on this subject, please see the third post in this series, along with our separate series on Understanding Inheritance Disputes in Dallas and Other Texas Areas.
What if you anticipate that trouble is brewing? Your children and spouse have been at each other’s throats for years, and you know that they will fight over your estate when you pass. Is there anything you can do to prevent costly legal drama? In short, the answer is no—there isn’t a perfect way to completely avoid in-fighting upon your death. Several precautions, however, may reduce the chance of an inheritance dispute over your estate. Here are some of those safeguards:
–Reliable, impartial witnesses. Choose your attesting witnesses carefully. You want witnesses who are reliable. Folks with strong memories who would agree to testify in court in support of your will. Crucially, your attesting witnesses can’t receive any property under your will—this is a strict legal requirement. In addition, it would be wise to rely on attesting witnesses who won’t be accused of favoritism by the potential challengers to your will.
–Current medical exam. You may anticipate a challenge to your will based on your mental capacity. How can you prevent this? A contemporaneous medical examination may be the best defense to incapacity claims. To be effective, the medical exam should be conducted as close to the date of the will signing as possible—the same day, if possible. The medical exam should be performed by a licensed physician—if possible, a neurologist or (if applicable) geriatric specialist. In addition, the doctor’s written report should specifically reference cognitive abilities pertinent to testamentary capacity. If you are thinking of using this approach, an experienced probate lawyer can assist by explaining the legal aspects of testamentary capacity to the examining doctor.
–No-contest clause. No-contest clauses, also called in terrorem clauses, can dissuade potential challengers from fighting over your estate. This type of clause, usually found towards the end of the will, can provide that if a person challenges your will in court, they lose all their inheritance rights. The potential challenger must receive something under your will, though, or else the no-contest clause will have no practical effect. If the entire will is invalid, that means the no-contest clause is also invalid. So if you include a no-contest clause but disinherit the potential challenger entirely, then the challenger will have nothing to lose by challenging the will. The more the potential challenger inherits under your will, the greater the incentive they will have to abide by the no-contest clause and decline to challenge the will.
We hope that this post alerted you to some potential problems when making a Texas will. A better way to avoid problems, however, is consulting with a probate attorney before making a will. Our Dallas probate and estate planning attorneys are skilled at identifying potential will defects and acting when they are found. Call us today to discuss issues with your estate planning. Our offices also service Plano, Frisco, McKinney, Denton, Fort Worth, Garland, Irving, Austin, Houston, San Antonio, Nacogdoches, Lufkin, and Center.
Our next post wraps up our series on making a will in Texas and synthesizes some of the more important points we presented.