Why a Last Will & Testament is Not an Estate Plan
Updated: Apr 3, 2019
Hypothetically, let’s say there is an older person in your neighborhood who you are quite fond of. Her name is Rose. You visit with her often. You share cups of coffee on Saturday mornings and collect each other’s mail when you are traveling. Even though she has no pets of her own, she lets you hide your cat in her home when the landlord makes his annual property inspection. You are best friends—more like family.
One day, she seems really depressed and asks to confide in you. She says, “Gladys, my dear friend, I have terrible news. My doctor told me I have cancer. I only have a short time left to be with you.” You are devastated. She actually must console you. You chat for a while and share a few tears over your Saturday coffee, which perhaps now has a little Irish Cream in it instead of just the usual half and half.
Rose tells you even more. She says, “I never see my children. They moved away years ago. They never come home for holidays. I send them money on their birthdays and at Christmas, and maybe I get a call once a year.” You listen attentively. She looks at you and smiles. Then she says, “Gladys, you are my true family. I’m leaving everything to you. I used the Googles to find a Will and I filled out the form. Two people from my church are coming over to be witnesses. Pastor Bob’s wife is one of them and she’s a notary public too, so she’s going to notarize the Will to make sure it’s perfectly legal.” Everything transpires according to Rose’s plan. She filled out the form, Pastor Bob’s wife notarized the Will. Rose then gives the Will to you so you can do what you need to do if necessary.
A few months later, tragically, Rose is in the hospital. She cannot speak, and she is sedated most of the time. Medicare is her insurance. You visit her daily. And you take care of her mail as she asked you to. She made you a signer on her account so you could pay bills for her. The nurses assume you are family so, they keep you informed. Soon though, the hospital can no longer care for her and they want to move her to a nursing home. There the bills really increase.
You do the best you can to take care of Rose, but she passes a few months later. Medicaid paid for the nursing home. You mourn the loss of your friend, but a few weeks later you decide it’s time to handle the Will and move on.
You bring the Will to the bank, and try to close the accounts. But, they inform you that you were only a signer, not joint owner on the account so you cannot close the accounts, and now you cannot access the funds to continue paying her bills. They tell you that you must get testamentary letters from a court. What’s that? You again turn to the Googles and discover you must probate the Will.
You attempt to probate the Will yourself and learn that the Will is invalid because Texas does not recognize the form. You discover that Medicaid has a claim against Rose’s assets to cover the nursing home. The court appoints some attorney ad litem. What in the world is that? How are you going to get reimbursed for the money you spent?
Not only that, but the hospital panics because you didn’t have a HIPAA form or Medical Power of Attorney and they pressure you to sign releases. The wayward children threaten to sue you. You did nothing wrong. You were a caring person, who truly loved your friend and now you regret getting involved. You were sure you were prepared. There was a notary, right? Shouldn’t that be enough? Unfortunately, no. It’s not enough.
This story and similar play out every day. People with the best intentions think they are helping their loved ones, but they are just creating a disaster. All of this is avoidable by having a well-designed, legally binding estate plan and an understanding that Google is not a lawyer.
An estate plan does include a Will, but that’s just the beginning. A good estate plan will provide your loved ones with several powers of attorney. You determine ahead of time when they become effective, and you retain the rights to revoke those powers. You may even be able to protect some of your assets from creditors at death, and preserve them for your beneficiaries. It should also plan for your incapacity, not just your death. It can even prevent wayward manipulative relative with greedy intent from becoming your guardian.
Creating a complete estate plan is not overly complex. It requires some thinking about what you really want, and it requires an attorney who will listen to your wishes and draft documents, which in the aggregate, work together to insure your loved ones can carry out your wishes. The whole process should take about 3 hours, unless you have an unusually large estate. Isn’t that short time investment worth it?
An effective process usually begins with a questionnaire. You fill out the questionnaire and an attorney uses the information you provide to create the documents. You should then go over each document with the attorney so you understand what each does. You attorney will then learn about you and your needs, then the attorney can make sure your plan is right for you.
At Winborne LaFleur PC, we will work with you to create an estate plan that works for you. We utilize a comprehensive questionnaire and a work flow that involves you and two attorneys to make sure that the documents are compliant with Texas law and meet your needs. We also offer ongoing education through our blogs and communications with clients. For your estate plan, the cost is flat, and, we can typically provide your documents in 3-5 business days after two reviews. You can contact us at (972) 330-2171 or at Winborne LaFleur PC.
Joseph “Jody” LaFleur, Esq.