Probate with a good will versus a bad will

First lets define a good will and a bad will. First a good will is a will that:

  1. Allows for independent administration without bond (very large estates or heavily indebted estates may prefer against this);
  2. Does not entice or contribute towards potential will contests;
  3. Is easy to have admitted to probate;
  4. Reflects your wishes on distribution of your property; and
  5. Saves your loved ones time and money while they close your final affairs.

So, a good will should be quick, easy, allow for independent administration if desirable, readily accepted by the applicable Court, and it should follow your wishes. You will hear a lot of lawyers, me included, call a good will a valid and properly drafted will.

So a bad will is missing one or more of the above characteristics. For example, many wills are easily admitted to probate but don’t correctly provide for independent administration. This is important because independent administration is one of the main things that makes probate in Texas quick and easy. A will that does not qualify for independent administration can cost thousands of dollars more to probate than a will that does.

Another example is that the will could be a holographic will that will require multiple handwriting witnesses to appear in open court and testify to the decedents handwriting. If the handwriting witnesses can’t be found, that will is not going to be admitted to probate.

Another example is a will that disinherits one or more of your children. Drafting a will like that is practically begging for the disinherited child to file a lawsuit to challenge your will. Many people who don’t use a lawyer to prepare their will don’t think about leaving some sort of gift for every child.

Another common mistake is leaving specific gifts in a will without proper language to take care of what happens if you no longer own the gifted item. A poorly drafted specific bequest can really throw a wrench in a testator’s plans. There are many other bad things that can happen with a poorly drafted will.

Or the worst-case scenario, the will is so improperly drafted, or executed incorrectly to the point that the will is not a valid will in Texas. This means that a judge will not admit the will to probate. Thus, such a will has no legal effect. That’s a bad will in my book.


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