Updated: Sep 27, 2021
Dear Mr. Premack: I am finally convinced that it is time to make a Will, just for my own peace of mind. I am thinking about writing it for myself, or maybe using an online service. Actually, one of the online services I checked is mostly do-it-yourself anyway. They ask how I want assets divided, and I submit the words for them to include in the Will. I know you are a lawyer and are biased toward telling me to hire a lawyer for this, and I’m willing to be persuaded. Why should I have a lawyer instead of writing a Will for myself? – P.H.
A challenge! You bet I’m biased, but it is for good reasons. I write Wills all week long, and have helped many families with unbelievably different goals and strategies. They know exactly what they want to accomplish and know nothing about the legalities of reaching those goals, and need experienced assistance. I’ve seen Wills prepared online containing terrible mistakes and oversights, foisted on trusting consumers who don’t know that online sites fail to provide legal counsel. I also handle estates for decedents who never got around to making a Will, and have seen the unnecessary pain, cost and uncertainty suffered by the survivors. Experience yells for you avoid doing it yourself and online Wills, and to rely on a trained legal professional!
Here is an example, from a case that was recently decided on appeal to the 13th District Court of Appeals, which covers the Corpus Christi and Valley areas. A gentleman named Ken Walker wrote his own Will. He was married to Lucy, his second wife. He had a son, Greg, from his first marriage. Ken owned a home, a truck and some guns.
In his Will, Ken wrote “I leave my house… to my wife, Lucy…. If Lucy… no longer wishes to preside on this property, she is to sell houses and property to my son, Greg… at a fair price. If Lucy… deceases while residing at this property, property and houses go to my son, Greg”. Ignoring Ken’s typos, the first part looks like he leaves the house to Lucy. That is how she read the Will, and what she wanted. Greg did not look at it that way. He thought that the last part (“If Lucy deceases while residing at this property”) meant that he had some rights, too.
They argued over the meaning of Ken’s words and landed in court. The trial court decided that Ken had been ambiguous. The court decided Ken intended to leave the house to Lucy only for the term of her life, and that when she died it automatically became Greg’s property. She could not leave it to her own heirs, and could not sell it and keep the money. Lucy hoped the trial court was wrong and appealed the decision.
Lucy lost in the appeal court, too. The court affirmed the decision that Ken’s words mean Lucy gets a life estate in the house, with the remainder interest passing to Greg. Is this what Ken wanted? We don’t know what he thought, only what he wrote. And because he wrote the Will himself, his choice of words was ambiguous so the court had to impose its legal interpretation.
How much money did the trial and appeal consume? Considering that a lawyer would have charged Ken somewhere around $500 for a Will – and that the lawyer prepared Will would have clearly stated Ken’s intentions, thus avoiding litigation – we can conclude that Ken’s do-in-yourself efforts ended up costing far more than he would have paid for professional legal advice.
So reason #1 for hiring a lawyer to write your Will: it is less expensive to do-it-right than to do-it-yourself or online offerings.
Next week: some additional convincing reasons to do-it-right with professional legal advice.
Paul Premack is a Certified Elder Law Attorney and a Five Star Wealth Manager (Texas Monthly Magazine 2009-2012) practicing estate planning and probate law in San Antonio.
Original Publication: San Antonio Express News, September 14, 2012