15 Will Drafting Mistakes For Texas Wills

28 Feb 15 Will Drafting Mistakes For Texas Wills

Whether a will is drafted by an attorney or not, there are often mistakes that should be avoided including, but not limited to, the following:

1. Choosing a beneficiary as a witness –
   This could result in disinheritance of that witness under Texas law.
2. Self-proving affidavit not in substantial compliance with Texas law –
   Often it is simple to probate a will in Texas, and there is no need to bring witnesses to court to prove the will is valid if there is a self-proving affidavit. However, if the self-proving affidavit is not in substantial compliance (i.e., failing to state that the witnesses are over 14 years of age) with Texas law, then it will necessitate bringing a witness or the notary to court.
3. Only acknowledgement instead of swearing as to the will validity –
   If the notarization is only of an acknowledgement instead of the will being sworn to by the testator or witnesses, then a witness or notary must testify that the will is valid.
4. Notary error –
   Sometimes a notary fails to sign or fill in the blanks also causing testimony of a witness or the notary to validate the will.
5. Bequests to a hard to locate individual –
   The executor has a duty to find beneficiaries. A beneficiary hard to locate could result in delay and a greater expense to the estate.
6. Making many bequests of $2,000 or more –
   The executor has to give notice and a copy of the will to each beneficiary who is to receive a bequest of $2,000 or more. This adds to the cost and time to complete all the duties of the executor. It is usually better to have a trust in this situation.
7. Failing to state the executor is independent –
   If you trust the executor, the will should indicate the executor is independent of court supervision. In many states, court supervision is required. So, out-of-state wills and online wills often fail to consider the laws of Texas.
8. Failing to provide a power to sell real estate –
   If the executor is not given the power to sell real estate, then court supervision may be required.
9. Failing to consider tax issues –
   Estate and income tax issues should be considered in addition to charitable giving.
10. Failing to provide planning for a minor or someone too immature to handle assets –
    Guardianship provisions should be considered if your child is a minor. Even if the child is not a minor, he or she may be too immature to handle funds (a testamentary trust should be considered).
11. Failure to consider beneficiary problems –
    Sometimes your beneficiary may be disabled or may have creditor problems or may have an addiction or marital problems. Contingent trusts that are a part of the will could be considered.
12. Concern over spouse remarrying –
    For those concerned about their spouse remarrying, a trust could be a part of the will.
13. “No Contest” provision without disincentive –
    Sometimes there should be enough given to a beneficiary to think twice about contesting a will.
14. Writing on will with the assumption that changes the will –
    If you want to amend the will, a codicil must be signed with the same formalities as a will.
15. Clarity of compensation to executor –
    If a beneficiary thinks the executor is being paid too much or does not trust the executor since the will is silent as to compensation or the will indicates reasonable compensation, this could result in litigation. Clarity as to the compensation is often needed.

If interested in learning more about this article or other estate planning (including how to avoid probate so that you don’t have any of the issues above), Medicaid and public benefits planning, probate, etc., attend one of our free upcoming Estate Planning Essentials workshops by clicking here or calling 214-720-0102. We make it simple to attend and it is without obligation.