Monday, July 14, 2008

Wills and Executing Them

What scares most about online/do-it-yourself Wills is the execution of the Wills. Execution meaning the signing of the Will. Screw this up and a perfectly written Will becomes trash. (on the other hand, a poorly written Will does not get saved by a a perfectly executed Will signing).

Take the time to read Will Execution Ceremony from before doing your own Will.

One of the most crucial stages of a client’s estate plan is the will execution cere­mony — the point at which the client memorializes his or her desires regarding at-death distribution of property. Unfortunately, attorneys may handle this key event in a casual or sloppy fashion. There are even reports of attorneys mailing or hand-delivering unsigned wills to clients along with will execution instructions. See Hamlin v. Bryant, 399 S.W.2d 572, 575 (Tex. Civ. App.—Tyler 1966, writ ref’d n.r.e.). Some attorneys may allow law clerks or paralegals to supervise a will execution ceremony. This practice is questionable not only because it raises the probability of error, but because the delegation of responsibility may be considered a violation of professional conduct rules proscribing the aiding of a non-lawyer in the practice of law. See Palmer v. Unauthorized Practice Comm. of the State Bar, 438 S.W.2d 374, 376 (Tex. Civ. App.—Houston [14th Dist.] 1969, no writ). An unprofessional or unsupervised ceremony may provide the necessary ammunition for a will contestant to successfully challenge a will.

Since the earliest recognition of the power of testation, some type of ceremony has accompanied the exercise of that power. Will ceremonies help demonstrate that the testator was not acting in a casual, haphazard, whimsical, or capricious manner by furnishing proof that the testator deliberated about testamentary desires and had a fixed purpose in mind when making the will. The ceremonies also provide evidence that the will was actually made by the testator, by impressing the act on the minds of witnesses.

A proper ceremony, coupled with sensitive and tactful counseling by the attorney during the entire estate planning process, may make it easier for clients to cope with the inevitability of death. Unfortunately, attorneys have been accused of showing “little concern about the therapeutic counseling that goes on in an ‘estate planning’ client’s experience.” Thomas Shaffer, The “Estate Planning” Counselor and Values Destroyed by Death, 55 Iowa L. Rev. 376, 376 (1969). You need to remember that many clients make only one will during the client’s entire life and that the psychological effects of confronting death are strong. Even if you conduct scores of will ceremonies each
The only way to make sure that you have a properly executed Will is to get a lawyer. Of course, opinions vary.