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San Antonio Express-News
June 14, 2005

Using Software or Forms for Will

copyright 2005, Paul Premack

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Dear Mr. Premack: My father-in-law recently redid his Will using a form he bought from the book store. I remembered a column of yours from some time back saying that type of Will was not legal in Texas. Is that still the case? I don't care what changes he has made if any, but I hope not to have any problems when the Will is needed. Thanks – LK

Back in 1999 in a lawsuit over the "unauthorized practice of law," the US District Court decided that certain Will writing software was illegal in Texas. The Judge said the software companies were attempting to practice law without a license. The state legislature responded very quickly to the Judge’s ruling, and passed a bill specifically legalizing Will software.

Your father-in-law definitely has the legal right to handle his own legal affairs, with or without the assistance of an attorney. If he wants to handle his own Will "pro se" he can do so. On the contrary, other persons do not have the right to handle your father-in-law’s legal affairs unless licensed as an attorney. Does a form or software program cross that line?

The legislature decided the answer is no; software and forms, when utilized by a person for their own personal legal needs (but not for their spouse, family or friends) are part of allowing a person to do his own legal work pro se. But even with guidance, a person should be wary of writing his own legal documents. You can buy a book telling you how to fix your own automobile, but most of us still go to the mechanic. You can read about repairing the electrical wiring in your home, but most of us still call the electrician. Specialists are necessary in our complex society, and the cost is money well spent.

Beware that some forms and software may fail to comply with Texas law (even though they are sold here). The following disclaimer, for instance, appears on will-making software: "This software is not a substitute for the advice of an attorney. Negotiating or drafting legal documents yourself could save you money on attorney fees, but may also expose you to risks. The facts of your personal situation, along with your state’s specific laws and changes in the law that may have occurred after the production of this software make it advisable to consult an attorney before finalizing any legal documents."

Thus, if you want to use the software or a pre-printed form, limit them to the simple role of developmental guide. Think about the ideas raised and what your unique solutions should be. Then visit you’re an estate planning or elder law attorney to fine-tune and legally complete your planning documents.

Your father-in-law he needs to be sure the form he purchased is not legally defective. There are dozens of things he could have done wrong, problems that could make the Will entirely invalid or could create enough confusion to start an expensive court battle over ambiguous wording. It is just not worthwhile to use a pre-printed form that could throw his estate into an expensive administration that costs much more than a lawyer-written Will would cost. He should see a specialist lawyer to take advantage of expert help.

Prior Column: Co-Executors -&- Miller Trusts
Next Column: Probate When Spouse Dies 
Disclaimer: This column answers a specific legal question asked by an individual in Texas. The answer may or may not match your individual situation. Be careful not to treat this column as specific legal advice, as it may not meet your individual needs. It may give you a solid basis for discussion with your own attorney.  You should consult with your personal attorney before you take any action on this or any legal issue. Also, please be aware that laws change, so  this column is valid only as of the date it was published. This communication does not create an attorney-client relationship between the author and the reader.

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