This column first appeared in the San Antonio Express News and other Hearst Newspapers on December 3, 2018.
Dear Mr. Premack: I am drafting a will and testament for myself and have a few questions? 1) Do I need to select a residuary estate for my will if I already have beneficiary's? 2) For the independent executor can I elect my husband and adult child, or does it have to be someone else that is not a beneficiary? 3) For the testator signature how does it work if I drafted the will myself?
You are drafting your own Will and have a few questions. I have a question, too. Do you grind your own lenses for your eyeglasses? I’m guessing the answer is no, because it takes special knowledge and special equipment, and you can tell right away if the lenses help or distort your vision. But writing your own Will doesn’t take special equipment, just your standard word processor. Once it is on paper, it may look great. But you can’t tell immediately if the Will is going to distort or aid your plans. As your questions establish, it takes specialized knowledge to get it right. So why are you trying this do-it-yourself approach when the likely outcome is damage to your assets and your heirs?
Why? To save money. Because lawyers are jerks. Because who knows better than you exactly what you need. Yes, I’ve heard those reasons, but they are not enough. You won’t save money; you’ll just defer a huge fix-it expense to your heirs and estate after you die. You won’t avoid lawyers; your family will need a lawyer to sort out the DIY errors. Some lawyers aren’t jerks. Some of listen to your goals, help explore solutions you may not be aware exist, and provide experience to get what you need.
Still, you have asked three questions and I’d like to try to answer them.
First, do you need to select a residuary estate for your Will if you already have a beneficiary? Answer: All Wills should contain a residuary clause. Often the structure of a Will is to state specific gifts to specific individuals. That is fine, so long as you are careful that the named heirs are not disabled, are not minors, and that the devised items are something you will still own when you die. (There was a case years ago where the man owned a ‘68 Mustang, and in his Will said, “I give my brother a ‘68 Mustang”. But he sold the car a few years later, and then a few years later he died. His brother sued the estate to get the ‘68 Mustang, and the court ordered that money be spent to buy a ‘68 Mustang for the brother. You don’t want that outcome.)
The residuary clause is intended to be the catch-all provision. What if, right before you die, you inherit a small piece of land from a relative? The land isn’t mentioned in your Will, so who gets it? It passes under the residuary clause. You need one.
Second, can you select a beneficiary like your husband or adult child as Executor? Answer: Yes, it is legal and often appropriate to do so. By the way, will you make your Executor independent of court supervision? Will you require or waive the executor’s bond? Will the Executor have power of sale? How about HIPAA authorization or access to digital records? Do you sense that you may a lawyer’s assistance? Will they be Co-Executors or successive Executors?
Third, how does signing the Will work when you drafted it yourself? Answer: Signing a Will is a very formal process. A typed Will must be executed and witnessed. Ideally, it should be self-proven (which includes notarization). The witnesses cannot be devisees in the Will. Everyone must be in the same room at the same time and must see each other sign, and the Will must recite that this was accomplished. The Will must be dated. Any fault in this process invalidates the Will.
Have you received the message? Don’t try a DIY Will. Don’t do it online. Don’t ask a neighbor for help. Work with an experienced, empathetic, helpful local attorney. You’ll get it right, and you will save money in the long run.
Paul Premack is a Certified Elder Law Attorney with offices in San Antonio and Seattle, handling Wills and Trusts, Probate, and Business Entity issues. View past legal columns or submit free questions on legal issues via www.TexasEstateandProbate.com or www.Premack.com.