Never, Never Prepare a Will for Yourself or for a Family Member

Dear Mr. Premack: I come from a family of 4 brothers/sisters. Before my mother passed away she had me prepare a will for her. I did the best I could and had it signed with two witnesses. As time passed I did not get the will notarized. My question to you: is the will valid? Second, since then one of my brothers has passed away. If we probate this will does my deceased brother’s wife get to any part of the estate? If we don’t probate, does she get any part of the estate? – Anon

First, never never prepare a Will without the help of a qualified licensed attorney. This is not a do-it-yourself proposition. In a Will, the entire financial components of an individual’s life are handled. All of that person’s assets and obligations are covered in the Will. It is a vital legal instrument, not to be taken lightly.

Second, it was illegal for you to prepare a Will for your mother unless you are a licensed attorney. This system was established because the law is complex, the issues are important, and regulated licensed professional help is necessary. She has the legal right to prepare her own Will (but she should not do so any more than you should, because her right to represent herself “pro se” is not the same as knowing how to do the job correctly).

You wouldn’t have considered doing surgery on your mother, would you? No, you would have taken her to the best doctor available; someone who has studied, developed specialized skills, and is licensed as a surgeon. The same is true with vital legal documents like a Will: seek professional help.

You ask if the Will you prepared for your mother is valid. That determination is made when it is presented to the court for probate. I can tell you that Texas law says the bare minimum for a valid Will is that it must be signed by the testator before two witnesses.

Bare minimum validity is not enough. The Will must properly dispose of your mother’s assets, must provide for payment of her debts and taxes, and must authorize an Executor to serve her estate. The Will must be worded properly to avoid conflicts, must have a backup plan in case circumstances change, and must pass review by the court. The Will should allow unsupervised administration, and should waive the requirement that the Executor be bonded.

You say that “as time passed” you “did not get the Will notarized”. Comments: a) A Will is valid without notarization; b) When notarization is used, it is on the “self-proving affidavit” that is attached to the Will; c) Notarization must take place at the same moment that the document is signed. You can’t sign something today, and get it notarized after time has passed.

You ask if your deceased brother’s wife gets his share. He died after your mother. State law says that if he outlived her by 120 hours, he gets his share of the estate. Since he then died, his share passes according to his Will which may or may not include his wife. If your mother’s Will is never probated, he still gets his ¼ share as an heir-at-law and since he died, his estate distributes his share.

If you had taken your mother to a qualified attorney for her Will, she could have modified the 120-hour survival requirement. The Will could have stated that if he failed to outlive her by a certain time (like 30 or 60 days) then he did not get his share, and would have controlled that distribution through a backup plan.

I know that seeing a lawyer can be intimidating and is not free. Seeking any professional help carries that burden. Getting your roof repaired after a storm can be more time consuming, frustrating and expensive than working with a lawyer on a Will. Put this into the proper perspective and get professional help. If you consider preparing a Will using an internet service, be sure that you are using a service that is personal and is operated by an attorney licensed in your state (like the virtual online law office at http://www.Premack.com).

Paul Premack is a Certified Elder Law Attorney and a Five Star Wealth Manager (Texas Monthly Magazine 2009-2013) practicing estate planning and probate law in San Antonio.

Original Publication: San Antonio Express News, July 12, 2010

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