The information in this column is not intended as legal advice but to provide a general understanding of the law. Any readers with a legal problem, including those whose questions are addressed here, should consult an attorney for advice on their particular circumstances.
I recently read an article about the battle between professional estate planners and Do-It-Yourself document proponents. The article pointed out that lawyers believe Do-It-Yourself is dangerous when it comes to estate planning, and they will certainly tell you so when asked. But here’s the thing—estate planning lawyers rarely get asked. Estate planning attorneys don’t get D-I-Yers coming into their offices to ask questions; it’s the heirs of the D-I-Yers who will have to come in and hire an attorney when the Do-It-Yourself Last Will and Testament doesn’t function properly.
There is a lot of legal knowledge, personalization, and attention to detail that goes into an estate plan, even if you are young and think you have negligible assets. The U.S. News article quotes one Brooklyn-based attorney as saying, "Unless you are single and have absolutely no money...you need an estate planner.” There are just too many things that can be forgotten, misunderstood, or just plain go wrong, and a small mistake can lead to big problems, even to the extent of invalidating your entire plan.
For example, did you know that...
Although a will doesn’t usually have to be notarized, most states do require you to sign it in the presence of witnesses.
You should always nominate at least one back-up guardian for your minor children in case your first choice is unwilling or unable.
Although there is no estate tax in 2010, many heirs will actually end up paying more because of capital gains taxes.
Your will becomes a public document upon your death, leaving your heirs open to criticism, claims, and contest suits by predators and disgruntled relatives.
These are issues that could completely derail all your good intentions in a DIY document, but would be easy for an estate planning attorney to anticipate and address. Despite the claim that they have attorneys on call to answer all your questions, problems continue to arise with DIY documents. For example, every state has a different system of transferring assets. Another matter relates to taxes. All states have different tax systems. Thus, the advice you get about transferring property and the tax implications can vary wildly.
Another common error by the D-I-Y crowd is that they fail to realize that Texas is a community property state. This means that property acquired during marriage is owned by both the husband and the wife. Therefore, when one spouse dies, something must be done to transfer the deceased spouse’s property interest to their spouse or another. Many times, I meet with clients who tell me their spouse passed away and that they did not probate their Will because they did not think they needed to do so. I have even had spouses who destroyed their deceased spouse's Will because they did not believe it was needed after they passed. This leads to the unfortunate path of intestate distribution, which is an expensive path dictated by Texas Law and not the deceased person.
Another area that an estate planning attorney can assist you with is helping to understand the importance of organization and communication. Some families communicate very well, and the parents include their children in conversations about assets and key contacts. However, this is the exception. Far too often, a family member is stricken with an illness or passes away, leaving the family struggling to find assets, important documents, insurance policies, and bank or financial accounts. They must go through the exhaustive task of finding and gathering this information while dealing with their grief.
I want to caution you on the hazards of writing your own Will using a form from the Internet or a Do-It-Yourself Will kit. You may save a few dollars, but in the long run, the goal of a Will is to make sure your last wishes are accomplished. Hiring an attorney to write your Will can help you ensure that the technical formalities of Texas law are followed and that your gifts are clear and easily understood. Spending a few dollars now will save your family and loved ones from spending more later. Not to mention the confusion and grief that will be avoided.
Sam A. Moak is an attorney with the Huntsville law firm of Moak & Moak, P.C. He is licensed to practice in all fields of law by the Supreme Court of Texas, is a Member of the State Bar College, and is a member of the Real Estate, Probate and Trust Law Section of the State Bar of Texas. © www.moakandmoak.com