Writing Your Will in the Time of Coronavirus

In Texas, unlike some places in the country where there are “hot spots” of the Coronavirus, not many of us yet have someone that we are directly connected to that has died.

I just found out that the sister of a distant relative in New Jersey has just died from Coronavirus and that my son’s roommate in Boston has tested positive for it.  I hope this doesn’t come like a wave to Texas, but that is an unrealistic hope.

Completing your Will during this crisis may not be on the top of your worry list, but, then again, maybe it is.  Several people have contacted me and told me they are feeling the urgency, especially during this pandemic, to get their Will done, so knowing that, I wanted to provide some information that might be helpful to you.  The most important thing may be to remember – Done is Better than Perfect.  Liz Weston, a Certified Financial Planner who has a regular column on Financial Matters in newspapers across the country, has written a piece called, “How to Quit Stalling and Write Your Will.”

In Texas, if you write your Will yourself, called a “holographic Will,” it must be 100% in your handwriting – do not type it and just sign it or modify one your already have by making changes in the margins – that will not work.

I DO NOT recommend writing a holographic Will if you can possibly get to a lawyer by Zoom or by telephone and get legal advice from a lawyer who prepares Wills.  If you absolutely cannot get to a lawyer and feel that you must do a holographic Will, here is a State Bar of Texas article, written by Derick Lancaster, an attorney in San Angelo, Texas, which sets out specifically what you need to do.  Again, doing a holographic Will often comes with significant problems that can cost your estate a great deal of money, so this is only as a last resort.

Some things to keep in mind, whether you are writing a holographic Will (see the previous paragraph) or getting with an attorney to do it for you.

1. Try not to create a family dispute.  Sometimes, by trying to keep everything equal, whether it’s division of assets or assigning the job of exector, you can create more problems that you solve.  For example, if you have three children and you require that they agree on everything before action can be taken in the administration of the terms of your Will, you may end up pitting the majority of your children against the other one.  If you have four children, and you require a majority of the children to agree on an action to move forward, what if you have a tie?  Who will decide?  These scenarios often are the reason that probate cases end up in Court and can cause schisms in a family that lasts the rest of their lives.
2. Try not to leave your estate to young, immature or irresponsible beneficiaries without a safety net.  If you leave some of your estate to children or grandchildren, for example, who have not reached the age of 18, because children cannot receive estate assets if they are minors, their portion of your estate may require that a guardianship be established, which is cumbersome and costly.  Whereas, if you set up a trust for any minor recipients, and name out someone, whether a member of your family or a professional fiduciary, like a bank, to serve as the trustee for their interest, you may avoid the cost of a guardianship.
3. Try to establish a trust with a trusted friend or relative or corporate fiduciary until your beneficiaries are capable of managing their portion of your estate.  Do you want a child or a grandchild who is young, immature, or irresponsible to receive their portion of your estate, or do you want it managed by someone else like a relative or fiduciary.  If you do not specify this, if a beneficiary is 18 they can receive their portion of your estate.  Most parents and grandparents want to hold their young or immature beneficiaries’ money in the hands of someone who will carefully manage it until those beneficiaries (hopefully) reach an appropriate age or maturity to carefully manage their interests themselves.  The money can be distributed in increments, such as, just for example, a portion when a beneficiary turns 30 and wants to get married, 35 when they are settled enough they want to buy a house, 40 when they want to change careers or begin paying for their own child’s college.
4. Liz Weston, a Certified Financial Planner and national columnist on financial issues, has written an article that sets out several of these and additional considerations, including: 1) Naming the right executor, 2) Including personal property, 3) Not tying up the money for too long, and 4) Explaining any unequal bequests.  There are varying opinions from experts on several of these issues, specifically in Texas, so if you possibly can, get to a lawyer to write your Will, but in the meantime, these are some good things to think about.

Whether you are getting ready to write your Will now or after the Coronavirus is in our rear-view mirror, these are questions worthy of consideration.

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