What is a will?
A will is a document that leaves your property to whom you want it to go. Under the probate code, there are a lot of formalities. The will has to be signed in the presence of two witnesses. The two witnesses have to watch the testator or the person signing the will actually sign the will. It has to be notarized, but the testator, who is the person making the will, and the witnesses have to all be notarized and all swear that they saw each other sign. It is generally designed for people who have real estate, stocks, and any bank accounts which do not have a co-signature. A vehicle does not have to be probated. You can go down to the county clerk’s office when someone passes and they will accept your affidavit of heirship and transfer title to the vehicle. But, real estate, stocks and bonds, securities, CDs, bank accounts that do not have a co-signature require probate.
There are very few people that are out there who do not need to at least consult regarding a will. What we try to do, and I did with my parents, is you know they own a house, so we do a deed from dad to mom and a deed from mom to dad, have it notarized and just stick it back in the safe. That way when the first was to pass, which was my dad, my mother could take the deed from him, pull it out of the safe and go file it with the County Clerk which avoided probate. In addition to helping people with their wills, we try to do some estate planning: how can you avoid paying lawyers to do a probate. If you are just a normal elderly couple or middle-aged couple and you have a house and maybe a second home, consider doing deeds to those back-and-forth between the spouses or to your children, however you want it, in order to avoid probate. That is kind of a synopsis of what we do when someone comes in wanting a will.
What happens when someone does not have a will? You said something about the probate process?
If you do not have a will and you have bank accounts without a co-signature, you have real estate, stocks, bonds, securities, then you have to do what is called a dependent administration. Instead of filing a will for probate where the executor, or in New Mexico the personal representative who can act free of the courts, you have to get a court order to even pay an electric bill on the house. You have to get court orders regarding distribution of the estate. It just requires a lot of court hearings, a lot of probate hearing, a lot of work by the probate lawyer, and it is extensive. So, it is just really a tragedy if you have assets and do not have a good will.
What are the benefits of having an attorney create the will for you?
These days, the LegalZoom and other computer or Internet means of coming up with corporations or wills is out there, but it never takes the place of sitting in front of someone who has practiced many years and can talk about what we just talked about. Yes, you need a will, but how can we avoid the cost of probate? How can we limit the legal expense of the inevitable passing and personally go over what assets you have? You need to discuss what your plans are with respect to investments and future assets, and how can you put your son or daughter on a bank account or a CD so you do not have to pay the cost of probate, but still have a will.
It is important to people to say, “To my beloved daughter and son: I want them to share equally in my estate. And, if one of them predeceases me I want his or her children, my grandchildren, to get his or her share.” If the grandchildren are underaged, that means you have to have a trust – a testamentary trust provision in the wills – with a trustee and a substitute trustee which complicates it a lot. You cannot get that kind of information on a LegalZoom or Internet-type approach.
What experience do you have with creating the wills in that process?
Mr. Gilstrap began in November 1975 with an older firm here in El Paso. In those days, most law firms like that had a general civil practice. So, they did a lot of wills, a lot of probates, and a lot of powers of attorney every month. So beginning back in the mid-’70s, we have been preparing wills that long, some complex, some not complex.
If you have an estate that exceeds the Federal estate tax exemption, which these days is many millions, then we evaluate those wealthy clients and send them on to lawyers who specialize in federal estate tax wills which has marital deduction trusts and things that are very complex, more complex than what we do. But, that is another reason to go to a good lawyer with experience in the field. They will know when you need to be referred to someone who is a specialist in federal estate tax issues.
Why choose your firm for the creation of my will?
Our firm has four lawyers. We have attorneys who’ve been working for 40 years and we also have two young lawyers who are very brilliant young men, one from Tulane Law School and one from Houston. They are extremely competent in the computer technology these days where we take advantage of information on the computer for wills and other legal matters. Collectively, we have many years of experience. We try to save clients’ money. We believe it is not about how much you are able to pay your lawyer for a will or a durable healthcare power of attorney or a living will where you want the doctor to unplug you. If two doctors decide that you are brain dead, most states these days have what is called a living will. You need to talk to experienced lawyers who can tell you how to avoid probate costs, what you need and what you do not need, and our firm does that.