By Craig Watson
Jim knew his mother’s health was declining rapidly. Jim’s father had died without a Will so his Dad’s probate was more costly and took longer. Jim assumed his mother Sally also lacked a Will and he wanted to avoid the extra expense and delay of probate. In addition to her savings, Sally had several parcels of real estate and a lot of farm equipment since she owned the ranch where she lived. Jim had several brothers and sisters, not all of whom had a good relationship with each other. Jim made an appointment with an Elder Law attorney. The attorney explained the advantages and disadvantages of both a Will and a Revocable Living Trust and stated that Sally could use either one as her primary estate planning document. When Jim relayed the information back to Sally, she told him she already had a Will. He assumed she must have seen an attorney so he did not press her for details. She died a couple of years later.
After Sally died, Jim and his siblings discovered that Sally had four handwritten Wills! Each Will was similar to the other Wills but they were all different. They figured she probably intended for the most recent Will to be her Last Will and Testament. When they went to see the Elder Law attorney, he told them that it was unfortunate that none of Sally’s Wills contained a statement that it revoked all prior Wills. Therefore, all four of the Wills had to be read together. The Wills were in conflict with each other and also contained a number of ambiguities. A Will written wholly in the decedent’s own handwriting can be valid in Texas even if it was not witnessed or notarized. However, it must meet many additional requirements such as containing a self-proving Affidavit. There are usually so many mistakes, ambiguities and other problems with a handwritten Will that probating the Will is often far more expensive than the combined legal fees would have been for drafting a Will and probating a well-drafted Will. Jim convened a meeting with his siblings to try to agree on what his mother wanted. However, due to the poor relationship his siblings had with each other, no agreement could be reached and the meeting did not end well.
Since there were multiple possible explanations for what his mother might have meant and because the family couldn’t reach an amicable agreement, it was necessary to file all the Wills with the court and ask the court to determine the final combined meaning of the Wills. Several of Jim’s siblings hired their own attorney. The court convened a hearing and listened to the testimony of all of Sally’s children arguing about what they thought Sally wanted. The hearing was so emotional that it caused even more divisiveness in the family’s relationship.
Another deficiency in the Wills was that they did not appoint an Independent Executor. The Court had to hold another hearing to listen to Jim and his brother argue about which one of them should be the administrator of the estate. Even after the Court decided that Jim should be the Administrator, Jim had to pay an insurance company for a probate bond because the Will failed to relieve the administrator of the requirement to obtain a security bond. Jim’s attorney had to file a motion asking the court’s permission every time he wanted to sell property, pay expenses, distribute the estate to the heirs or take any other action. The whole process was even slower and more costly than when Jim’s father died without a Will.
The moral of this story is that it is a bad idea to try to plan your estate without the assistance of an Elder Law attorney. A well drafted Will would have helped Sally’s family maintain a better relationship with each other. It would have clearly prescribed exactly who Sally wanted to receive the various portions of her estate. It would have settled who she trusted to administer her estate. And it would have saved thousands of dollars in legal fees. Elder Law attorneys are highly trained in all issues related to estate planning. Sally’s family would have saved a lot of time, money and emotional turmoil if she had sought expert help to plan her estate.
Craig Watson’s law practice focuses on Estate Planning, Probate, Guardianship and Elder Law. He is Board Certified in Elder Law by the National Elder Law Foundation as recognized by the Texas Board of Legal Specialization. Formerly a CPA, he has 25 years of experience. Call 903-813-8500 or go to Craigwatsonlaw.com