Pitfalls of Drafting Your Own Will
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Pitfalls of Drafting Your Own Will

Many people make plans for what they wish to happen when they die. A key legal document in a good estate plan is a legally executed Will. A Will designates who will receive the property in the estate upon a loved one’s passing. There are many options available when drafting a Will. In this article we will give some tips on drafting Wills. It is always a good idea to hire a probate attorney such as Austin probate lawyer Farren Smith for help drafting a Will.

What if the Person Did Not Have a Will

If the person died in Texas without a Will, his property passes to his heirs under Texas law. This is known as intestate succession. Without a Will, the estate passes to the descendants according to Texas law even if the decedent said while he was alive that he preferred that his property be left in a different way.

How the property passes and to whom under Texas intestate laws is very complicated. Often families in Austin, Pflugerville, Cedar Hill, and Round Rock will need an Austin probate attorney to help sort this out. There are a number of considerations, including whether the person was married or single, if the estate property was community or separate property, and who and what lineage the survivors hold. Probate without a Will can be very costly and complicated involving court intervention.

Advantages of a Will

A testator is a person who leaves a Will upon his or her death. A Will is a written, legal document that goes into effect upon the testator’s death and states how the testator would like his property distributed. A Will avoids the intestacy problems of the testator’s property going to people not chosen by the testator.

In addition to naming beneficiaries to receive the estate, a Will can also designate individuals to care for children, set up trusts to manage property for others, and name an executor to probate the Will.

Basic Requirements for Execution of a Will

Texas law allows a person to draft his own Will. Wills can be handwritten (also known as holographic Wills) or type-written (known as formal Wills).

To execute a Will, the testator must meet the following requirements:

  • Be at least 18 years old, or have been lawfully married or serving in the armed forces.
  • Be of sound mind when executing the Will.
  • Not be unduly or fraudulently induced (deceived or forced) to make the Will.
  • Have testamentary intent, meaning intent at the time to give the property upon death to those named.
  • Be signed by the testator.

How an Attorney Can Help Avoid Pitfalls

A person must be careful to avoid common pitfalls when drafting or executing a Will, such as:

  • Illegible handwritten Wills.
  • Mixed handwritten and typed Wills.
  • Improper signing.
  • Not meeting witness requirements.
  • Unclear language that is ambiguous.
  • Poor wording that does not convey the correct property.
  • Not disposing of all of the property owned by the testator.
  • Improperly providing for an executor to act without court supervision or bond.

Because of these and other potential pitfalls that may occur if the Will is not drafted or executed properly, it is wise to hire a probate attorney such as Farren Smith to create a type-written formal Will.

A probate attorney will make sure that the language used effectively distributes the property according to the person’s wishes. The probate attorney can counsel the person on other estate planning needs as well, including powers of attorney and trusts. The attorney will ensure that the Will is executed properly so that it will hold up legally during the probate process with minimal cost and time. She will advise that the original Will be held in safe-keeping for when it is needed.

It is advisable to see an attorney to help draft a Will so that family members can easy and quickly distribute the estate once a person passes away. Having an attorney in Travis County can help facilitate this somewhat complicated process. If you have questions, please contact Austin probate attorney Farren Smith for a consultation.

Sources

  • Tex. Estates Code

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