Texoma Living Well Magazine May/June 2018 | Page 15
Why You Don’t Want A Handwritten Will
J
By Craig Watson
im knew his mother’s health was
declining rapidly. Jim’s father
had died without a Will so his
Dad’s probate was more costly
and took longer. Jim assumed
his mother Sally also lacked a Will and
he wanted to avoid the extra expense
and delay of probate. In addition to
her savings, Sally had several parcels
of real estate and a lot of farm equip-
ment since she owned the ranch where
she lived. Jim had several brothers and
sisters, not all of whom had a good
relationship with each other. Jim made
an appointment with an Elder
Law attorney. The attorney
explained the advantages
and disadvantages of both
a Will and a Revocable
Living Trust and stated that
Sally could use either one as
her primary estate planning
document. When Jim relayed
the information back to Sally,
she told him she already had
a Will. He assumed she must
have seen an attorney so he
did not press her for details. She
died a couple of years later.
After Sally died, Jim and his sib-
lings discovered that Sally had
four handwritten Wills! Each Will was
similar to the other Wills but they were
all different. They figured she probably
intended for the most recent Will to be
her Last Will and Testament. When they
went to see the Elder Law attorney, he
told them that it was unfortunate that
none of Sally’s Wills contained a state-
ment that it revoked all prior Wills.
Therefore, all four of the Wills had
to be read together. The Wills were
in conflict with each other and also
contained a number of ambiguities. A
Will written wholly in the decedent’s
own handwriting can be valid in Texas
even if it was not witnessed or nota-
rized. However, it must meet many ad-
ditional requirements such as contain-
ing a self-proving Affidavit. There are
usually so many mistakes, ambiguities
and other problems with a handwritten
Will that probating the Will is often far
more expensive than the combined le-
gal fees would have been for drafting
a Will and probating a well-drafted
Will. Jim convened a meeting with
his siblings to try to agree on what
his mother wanted. However, due to
the poor relationship his siblings
had with each other,
no agreement could be reached and
the meeting did not end well.
Since there were multiple possible
explanations for what his mother
might have meant and because the
family couldn’t reach an amicable
agreement, it was necessary to file
all the Wills with the court and ask
the court to determine the final com-
bined meaning of the Wills. Several
of Jim’s siblings hired their own at-
torney. The court convened a hearing
and listened to the testimony of all of
Sally’s children arguing about what
they thought Sally wanted. The hear-
ing was so emotional that it caused
even more divisiveness in the family’s
relationship.
Another deficiency in the Wills was
that they did not appoint an Indepen-
dent Executor. The Court had to hold
another hearing to listen to Jim and his
brother argue about which one of them
should be the administrator of the es-
tate. Even after the Court decided that
Jim should be the Administrator, Jim
had to
pay an insurance company
for a probate bond be-
cause the Will failed to
relieve the administrator
of the requirement to
obtain a security bond.
Jim’s attorney had to
file a motion asking
the court’s permission
every time he wanted
to sell property, pay
expenses, distribute
the estate to the heirs
or take any other
action. The whole
process was even
slower and more
costly than when Jim’s
father died without a Will.
The moral of this story is that it is a bad
idea to try to plan your estate without
the assistance of an Elder Law attor-
ney. A well drafted Will would have
helped Sally’s family maintain a better
relationship with each other. It would
have clearly prescribed exactly who
Sally wanted to receive the various
portions of her estate. It would have
settled who she trusted to administer
her estate. And it would have saved
thousands of dollars in legal fees. El-
der Law attorneys are highly trained
in all issues related to estate planning.
Sally’s family would have saved a lot
of time, money and emotional turmoil
if she had sought expert help to plan
her estate.
Craig Watson’s law practice focuses on Estate Planning, Probate, Guardianship and Elder Law. He is Board Certified
in Elder Law by the National Elder Law Foundation as recognized by the Texas Board of Legal Specialization.
Formerly a CPA, he has over 25 years of experience. Call 903-813-8500 or go to Craigwatsonlaw.com
TEXOMA AREA Living Well Magazine | MAY/JUNE 2018
15