Davidge & Wright, L.P., on the perils of do-it-yourself wills and trusts – LIVING WELL Magazine

Do It Yourself?

By Miller Davidge, Davidge & Wright, L.P. Denton LIVING WELL Magazine

There are many reasons people don’t hire an attorney to prepare their wills and other estate papers. Some people want to keep everything private, and are afraid of disclosure to any third person, even a lawyer. Sometimes people don’t want to appear uneducated (people who have not seen me try and change the oil in my car or program my electric coffee maker). But many of the “do it yourself” wills are prepared by well-meaning individuals who think that the online forms truly protect and provide for their loved ones as well as an estate planning attorney. Unfortunately, most of the “do it yourself” wills we see lack the fundamental will requisites required and mix-up, leave out or misinterpret the words and phrases that have very specific purposes and meaning in a will. In other words, the particular words and phrases that the lawyer uses in drafting a will are his tools of the trade, so to speak, honed through many years of study and work.

In truth, a will need not be a complicated document. But it does contain concepts that need to be studied for a long time to truly understand. We see wills prepared by attorneys who practice in other areas of the law and occasionally prepare a will for a friend or relative. Oftentimes these wills, while basically sound and valid, are missing language or contingencies that would have better served the testator’s family. I used to think that I was an expert in criminal law, having spent the first two years of my law practice as a prosecutor in Denton County. After a few years away from that area, I realized that I hadn’t kept up enough to continue to represent clients in that area.

The huge potential for problems, however, arises with non-attorney prepared estate documents. In one case, a widow made every effort to put together a good estate plan, attending a seminar presented by a group advising people on how to avoid probate and how to prepare their own trusts. The speakers cleverly pointed out that they were not attorneys, and could not actually prepare documents that only an attorney was licensed to prepare. They sold this well-intended lady a $2,000 set of incomplete documents. The widow had two children, an unmarried daughter, and a deceased son who had one child.  After the lady’s death, many friends testified in court that she intended to give one-half of her estate to her living daughter, and the other one-half to her deceased son’s daughter.  What she actually did, in filling out the blanks in the documents she purchased, was to leave three-fourths of her estate to her granddaughter, and one-fourth to her daughter. In this case, the court could offer no help, because the documents were very clean, and could not be contradicted by hearsay testimony of the friends. This truly unfortunate result placed a wedge between the daughter and granddaughter that has never healed.

In another case, a client took the will of a friend and tried to use the language in that will to create her own. The first will was originally printed on 8 ½ by 14 inch legal-sized paper. But the copy of the will she used as a template was printed on 8 ½ by 11 inch paper, resulting in the omission of many essential terms. It was almost impossible to determine the actual beneficiaries. Fortunately, in this case, the court was able to help because of the ambiguous wording in the will. Testimony of the writer’s intent was admissible and saved a will that really didn’t clearly name any beneficiaries.

In other typical cases, “do it yourself” wills often state the beneficiaries, but fail to give the executor the powers typically given to an executor, so that he or she can operate free of court supervision, as the Texas Probate Code allows.

In all of these cases, the desire to avoid the perceived costs—whether monetary or otherwise—in preparation of the documents, resulted in substantially greater costs later when involving an attorney became inevitable. The old saying, “an ounce of prevention is worth a pound of cure” is proved out over and over again. More unfortunately, the costs of the cleanup often far outweigh the costs of upfront planning that would have avoided the problem entirely.

Davidge & Wright, L.P. handle all aspects of estate planning and would be happy to assist you with planning for the future in ways that make the most sense for your particular situation. You can reach Davidge & Wright at 940-382-9500 or visit their website at www.davidgewright.com.