Last week, reader “P.H.” said that he knew it was time to make his Will. He was leaning toward a do-it-yourself Will or an online Will, which he said was mostly DIY anyway. He asked if there were good reasons to pay for a lawyer’s help.
Last week, I gave Reason #1 for hiring a lawyer to write your Will: it is less expensive to do-it-right than to do-it-yourself. The example was recent litigation over a Will written by a man named Ken, who tried to leave his house to his wife but used words that gave his son grounds to claim rights. The courts decided that his wife had to share ownership with his son. Ken’s inexperience with legal precedence and special meaning for certain words caused litigation, which was far more expensive than hiring an attorney to do-it-right from the start.
There are other reasons to rely on experience professional legal advice. Online sites do not use lawyers to give you counsel or draft your Will. One site that advertises heavily buries this disclaimer: the site “is not a law firm and is not a substitute for an attorney or law firm. Communications between you and [this site]… are not protected by the attorney-client privilege or work product doctrine.” You get no legal advice, no legal advice specific to Texas law, and you give up legal privacy at online form sites.
Texas law imposes a variety of requirements on an Executor. An Executor must by law do two very expensive things: 1) post bond through an insurance agency to guarantee good behavior, and 2) suffer court oversight of all decisions and actions the Executor takes on behalf of the estate. These default legal requirements are called a “dependent bonded administration”.
Most people do not like the idea that probate should be slow, expensive and a burden on their survivors. Will someone on the do-it-yourself to save a few bucks bandwagon have the legal knowledge and experience to avoid those expensive, slow probate procedures? Unlikely. But an experienced legal professional can include in a Will provisions to waive the bond requirement, and to allow the Executor to act free of court supervision. The administration will be far less expensive when those provisions are included in the Will.
Thus, Reason #2 for hiring a lawyer to write your Will: it is less expensive to do-it-right than to do-it-yourself or do it online. Wait, that was also reason #1. Hmmmm, do you see a theme emerging?
What else can make it more expensive to do-it-yourself? How about the idea that when you die and your Will is presented to the court, evidence must be submitted to prove that the pieces of paper are really your Will and not a fraud? The validity of a do-it-yourself Will like the one which Ken made must be proven with evidence. The law allows a handwriting expert to be hired, or allows two people who knew Ken’s signature and handwriting to testify in court. Anything that takes more time in court can be more expensive.
The alternative is to let an experienced legal professional “self-prove” your Will. The law contains special provisions that, when properly included in your Will, eliminate the need for anyone to testify about its validity. This enhances the Will’s credibility and can streamline the probate process.
So, Reasons 1, 2 and 3 for hiring a lawyer to write your Will: it will save you money. There is one other reason: a Will may not be the best or only legal way to pass title to your assets. An experience legal professional can advise you about survivorship arrangements, designation of beneficiaries, and can discuss with you the pros and cons of avoiding probate by using a trust agreement. Thus, Reason #4 to hire a lawyer is to investigate other options that can avoid probate (and save money). There’s that theme again!
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 21, 2012