San Antonio Express-News
November 8, 2005

Preparing a Will for a Family Member
-&-
Probate When Spouse Dies

copyright 2005, Paul Premack

Your letter raises a number of issues. First, is it legal for you to prepare a Will for your mother? Second, if you do so, is that Will itself going to be a valid legal document? Third, is a Will the most effective and efficient tool for your mother to use?

Your mother definitely has the legal right to prepare her own Will. You are concerned that as an 84-year-old, she does not have the technical and perhaps the organizational ability to do so. As a caring child, you want to help in any way that you can.

So, can you prepare the Will for her, even using software? The legal answer is "no." A person can do his/her own legal work; your mother can prepare her own Will. But to do legal work for someone else is illegal unauthorized practice of law.

You could hurt the situation if, even with the best of intentions, you prepare her Will. You asked if a Will you send to her to be notarized and signed would be legal. It would not. To be legal, a typed Will must also be witnessed by two independent individuals. The software is often very generic, sometimes missing the fine points of Texas law. You say that you are the only child she trusts to help, implying she has other children she may not trust entirely. If you prepare her Will, they may have grounds to contest it when she dies – claiming you unduly influenced her, or the Will expresses your wishes instead of hers.

Finally, is a Will the most effective and efficient tool for your mother? Maybe a trust would solve more problems for her. Maybe she can use survivorship or a life estate arrangement to cut costs. It takes a licensed attorney (experienced in estate planning or elder law) to look over her individual situation, break down her options, and determine what approach is most effective and efficient.

Dear Mr. Premack: My father died twelve years ago. He had a Will leaving everything to my mother. Now she wants to sell the house and was asked about probate of his Will. We thought probate was not needed when the first spouse died. Why are they asking about his Will? – CV

In Texas, a married couple who buy and pay for a house together own it as community property. Each owns half. The typical deed lists both their names but does not have any terms determining what happens when either spouse dies.

When one does die, that half passes to whoever was selected by that spouse. Your father could have left his half to you, your mother, his brother or to anyone. Only the legal documentation tells us the story, and we only know what the documents say when they become public.

If he had a Will, probate is the way the Will becomes public (but a Will can only be offered for probate within four years of death unless unusual circumstances exist). If he and she had a Community Property Survivorship Agreement, the signed Agreement would already be public because it is recorded with the county clerk. If he left no legal documents, state law on intestacy identifies his heirs; the public can then be informed in a variety of ways, including an affidavit of heirship.