This section is not intended to help you write your own will. Some items which may be discussed here may constitute things you might want to think about before going to see an attorney. Other items may be quirky considerations that struck me as funny. Or, they may just be unusual things that have come up in the past. You are advised to obtain competent legal counsel prior to drafting any will or testament.
When you do see an attorney, your attorney should, of course, listen to what you want. If your attorney does not know that you want to provide for your pet upon your death, or guarantee that your sister is not appointed the guardian over your children, then how can you make sure such things do (or don’t) happen? Listening therefore, is key. For your part, you too should be prepared to listen to your attorney. Indeed, while I have had clients who seem to show me too much deference, to the point of asking me how they should split up their property, or not wanting to actually read any of their documents, I am sometimes surprised to have clients show resistance to the oddest things which are necessary to the will-making process. So, before coming in, think about possible answers to the following questions (some of which are admittedly simplistic):
Q: Where should I safeguard my will?
A: There are several good places to keep your will, and even more bad ones. A home safe is one of the worst, unless there is plenty of access to it by others. Texas counties allow “safekeeping filings” and that’s a good place to keep a will, so long as loved ones know about it. Safe deposit boxes are also a good place to put a will. The law allows banks to open the box to allow an executor to obtain a will kept inside.
Q: At What Age should I let someone inherit in my will?
A: This answer depends upon the purposes which you want to accomplish in the will. Do you wish to keep the money safe from a spendthrift? Or provide for a child’s college education? Or perhaps make provision for a subsequent, unforeseen illness and recovery? Most clients say that 18 is too young; others feel comfortable with allowing a child to inherit free from restriction at the age of twenty-five. It’s your will and your family–you make the choice.
Q: Do I want my life insurance policy to “pour over” into my will?
A: It depends on what you want to do with it, of course. If it all goes to your spouse, then having him or her named as a beneficiary on the policy itself will speed up the “time it takes” to obtain this valuable asset. If you anticipate putting restrictions on the use of the insurance benefit, then such may be accomplished through a will and so the policy should, in such cases, “pour over” into the will.
Another example of a good question to ponder is the old probate adage: Avoid dividing ownership in real estate. Certainly, if you own real estate at your death, it is almost always best to either leave the entire property to one person, or to a trust, or to order that the property be sold and the assets divided. But from time to time, you have compelling reasons not to award real estate to just one person. Talk with your legal counsel to see what best fits your circumstances.
Q: Why it is a bad idea to make your children co-executors
A: While Texas allows you to name co-executors to probate your will, it is almost always a bad idea. Money often (there is a strong temptation here to say “invariably”) makes enemies of the best of friends. Put only one in charge, if possible.
Q: I have given a power of attorney, I don’t need a will anymore, right?
A: A power of attorney may be viewed as a mirror image of a will. Whereas a will is not valid until death, a power of attorney is generally valid immediately and dies when you die. In sum, you may need both to adequate take care of contingencies involved in your estate. In this connection, it is rarely wise to give a power of attorney to a non-spouse unless trust and family harmony are absolutely inviolate. An adult child with a parent’s power of attorney, can destroy the estate even before they’re gone. That is not the key to famly harmony at the furneral.
Q: We are not going to have any more children. Why should I list what will be inherited by children born after my will is written?
A: No one never knows what they don’t know. I guess if you and your husband are 70 years old or more, then it’s a safe bet to exclude after-born children. But I’ve seen dozens of times where grandparents have adopted their wayward son’s unwanted child, as their own. An adopted child is a “child” for purposes of inheritance.