Can I use a will from on-line or an office supply store?

I never hear this question in my office. If my clients didn't think a professional was necessary, they wouldn't have scheduled an appointment to see me. However, this is the question I am most often asked at church, my children's activities, my speaking engagements, chamber of commerce meetings, or any place, other then my office, where people discover that I write wills. I can see why. Almost everyone knows they should really get a will, most people don't have one, and it seems like a cheap, and easy alternative.

So, the quick answer to this question is that wills that promise they are "valid in all fifty states", usually do, in fact, produce a will, which is valid in Texas. However, you can be letting your heirs in for a lot of heart ache if you actually use one.

There are five major reasons not to use prepackaged wills.

1) It will cost more in the long run. Form wills almost always cost more to probate, and take more of your, and your probate attorney's time. Texas has very unusual and effective probate laws. A properly written Texas will is quick and relatively inexpensive and painless to probate. Those one-size-fits-all-50-states wills are not written to take advantage of our Texas laws. Over the last year, I have made a little collection of form wills which have been brought to me to probate or have been brought to me to review. I have collected form wills from 11 different companies, including the most heavily advertised companies, and have yet to see a will which is written to take advantage of Texas's stream-lined probate system.

2) Your will may not say what you think it says. I have seen this in my practice when box wills are brought into me for revision. A good example is a man with two children and three grandchildren. When I interviewed him, he wanted to split his property evenly between his two children. In the event one of his children died before him, he wanted the children of his dead child to inherit their parent's share. He was unaware that, under the computer generated form he had had in place for the last several years, if one of his two sons died before him, the surviving child would inherit everything. Of course, in the form wills I have been asked to probate, I cannot tell my client if the testator intended to disinherit his grandchildren, I can only tell them that he did.

3) You probably have not thought of everything which should be addressed in your will, and most forms will not make the suggestions to you. The most common element left out of form wills is what should happen if a minor ends up inheriting property. Almost every will has at least some possibility that this will occur. Even if your children are grown, most people want their grandchildren to inherit if a child predeceases them. In that case, who will manage the money? Should it be the grandchild's surviving parent? What if the surviving parent divorced your child, or if they were never married. Maybe you just don't trust the other parent. At what age should the children/grandchildren come into their inheritance? What restrictions should be placed on the money? It is a rare eighteen year old capable of being responsible for more than one month's living expenses. Any competent attorney will walk you through these questions and suggest solutions. Most form wills will not.

4) When you see an attorney for a will, you usually get a lot more. By this, I mean a lot more documents. Our office, and most attorneys I know, do not charge extra for a power of attorney, a directive to physicians or "living will", a declaration of guardian, a HIPPA release, or a medical power of attorney. A power of attorney in particular is frequently needed, and, if you do not have one in place, it can cost your family thousands of dollars in fees and expenses for a guardianship proceeding.

5) If you use an attorney, you know that your will has been properly executed. This may seem like a very simple thing, but it ends up being a problem a lot more often than you would think. Not only must the witnesses be present when the will is signed, but the testator needs to be present when the witnesses sign. Also, people who inherit, cannot act as witnesses. The testator must state to the witnesses that he is signing a will. These issues and other have been used to hold an otherwise legal will invalid. This is why most attorneys have wills signed in their offices, rather than sending a client home with an unsigned document.

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