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Top Five Misconceptions Regarding a Will

On Behalf of | May 5, 2017 | Probate Law, Wills |

I speak with people about estate planning all the time, specifically wills. I’ve found that many people have very similar misunderstandings regarding a will.  I’ve put together a list of the top five misconceptions I’ve run across. I invite you to look and see if you’ve been victim to any of these fallacies.

Number 5: “I can’t change my will once it’s been drafted.”

Actually, a will can be changed at any time after it has been drafted and executed, so long as you still have capacity.  In some cases, you can simply draft a codicil to the will, a separate document indicating that there has been a change to the will, rather than rewriting the whole will.  (It’s always best though to check with an attorney to see if a codicil is sufficient for making the intended changes.  

Number 4: “I don’t know who I want to give my possessions to, so I can’t draft a will yet.”

When drafting a will, you just need a general idea of who you want to leave your assets to. You do not need to specifically name every person to whom you wish to give every single tchotchke. In other words, the will is going to look at the big picture, and then you can work with your attorney on how to accommodate specific individual items.

Number 3: “My family knows how I want my estate distributed, I don’t need a will to tell them what to do.”       

Oh, how I wish this were true sometimes!

First of all, your family does not decide how to distribute your estate after your death. The Texas Estates Code has provisions determining the distribution of your estate. The administrator of your estate must follow these rules while probating your estate. 

Secondly, even if you believe certain family members would waive their right to any portion of your estate to which they are entitled, that doesn’t always happen. Death is a difficult thing to deal with and it can sometimes make the kindest person the harshest.  Don’t leave this burden to your family. If you know what you want done post-death, do your family a huge favor and draft a will.

Number 2: ” I don’t need an attorney to draft a will.”

While this is technically true, it leaves you walking a fine line. Texas law does not require that you hire an attorney to draft a last will and testament, and there are many ways for you to do so without going to an attorney. Regardless of what you find on the Internet to “help” you, it puts the burden of legal interpretation on your shoulders. If you include or exclude certain things, you may end up with an unenforceable will. You could also unknowingly be creating tax consequences for your family. While it is possible to draft a will yourself, it is truly best to seek the counsel of a licensed attorney to assist you.   

Something to ponder: Would you give yourself a root canal just because you can find a how-to video on the Internet, or would you go to a dentist?

Number 1: “I don’t have anything, I don’t need a will.”

I strongly believe every person needs a will. A will is your safety net to ensure the assets you do have, which you have earned through your hard work, will go to the person or people you feel deserve them. Plus, a will can do more than distribute your assets. It can direct how you would like your funeral to be conducted (or can even specify you don’t want a funeral).

And perhaps most importantly, when people come in to speak with me about a will, we discuss other estate planning documents which would be beneficial to them–helping many of them with unexpected issues that might come up while they’re still alive.

This is by no means an exhaustive list, but it covers the biggest misconceptions out there that keep people from doing the estate planning they need. If this article has you thinking you need a will and maybe more, I’d love to meet with you and help you get the estate planning counsel you need.