Dallas Bar Association

Going the Extra Mile When Drafting Wills

by Christian S. Kelso, Esq.

A professor in law school once asked me why I wanted to be one of “those will-drafting attorneys.” The implication was that will drafting is a simple task for any attorney. Although the basic requirements of a valid will in Texas may be straightforward, the reality is that a well-drafted will incorporates much more than the basic requirements. As attorneys, it is our responsibility to lead clients away from legal traps. But we are also counselors, and in this capacity, we are charged with digging deeper to provide our clients with the best possible legal service.

Many standard will forms address a few variables but ignore other, more specialized, issues. Failing to address these issues, however, can lead to unwanted consequences. Attorneys should be prepared to address them or refer the work to a colleague. Individually, these issues may be relatively uncommon, but the fact that there are so many of them increases the likelihood that a particular client will need specialized planning of some sort.

The following are just a few of these special issues:

·               Non-Citizen Spouse. The estate tax marital deduction is a key component of testamentary estate tax planning because it allows for the payment of tax to be deferred until the surviving spouse dies. One requirement of the unlimited deduction, however, is that the recipient spouse be a U.S. citizen. Otherwise, only a limited deduction is available. Even if only one spouse is a non-citizen, a qualified domestic trust, or “QDOT,” may be appropriate. If properly structured, such a trust will allow estate tax to be deferred until the surviving spouse dies and may also be drafted such that it can be converted to a typical marital trust, if the surviving spouse naturalizes.

·               Pets. As a general rule, Texas law treats pets like any other personal property. Many clients, however, view their pets much like children. Fortunately for them, a special provision of the Texas Trust Code provides that trusts may be established for the care of pets. The statute requires that such trusts be reasonably funded and assets remaining in the trust when the pet dies pass to human beneficiaries. Clients who are undecided about pet trusts should remember that the gift of a pet is the gift of something that eats and may need expensive veterinary care. Setting a little money aside in trust may ease this burden.

·               Modern Families. It is no secret that the modern world is moving away from the traditional concept of family. More families are blended, with children of several marriages, and clients may not understand how failing to plan for such a scenario can lead to unfair treatment, animosity and costly legal battles. Additionally, more clients are seeking marriage-like relationships without the legal formalities. Whether by choice or due to legal prohibition, persons in such relationships should understand and address the legal implications of their status.

·               Beneficiaries with Special Needs. If a child or other beneficiary has special needs due to a mental or other disability, special planning can be very important. In particular, persons receiving Supplemental Security Income (S.S.I.) may lose their benefits because an inheritance can render them ineligible until it is exhausted, at which time the individual must reapply for benefits. Thus, attorneys should always ask clients whether any contemplated beneficiaries have special needs and be prepared to address the situation if they do. Additionally, it may be necessary to add special language to a client’s durable power of attorney.

·               Firearms. Like several other assets, guns, particularly those covered under the National Firearms Act, present a special estate planning issue because of ownership restrictions. With increasing gun control, trusts are becoming more popular for gun enthusiasts. This is even more important for beneficiaries who may be subject to the laws of other, more restrictive states.

Although by no means exhaustive, the list above illustrates how estate planning attorneys must develop relationships with clients and be prepared to address a wide array of dynamic circumstances. Fortunately, the ability to address these issues presents a win-win scenario. On the one hand, attending to them usually results in increased billing, while, on the other, clients usually appreciate the extra care and attention. It might cost a few dollars more up front, but getting the job done right is very important. Even in cases where no special planning is needed, clients will appreciate the service provided by the more thorough attorney who takes the time to inquire.

 

Christian S. Kelso was awarded his LL.M. in taxation from Southern Methodist University in December and has accepted an associate position Winn, Beaudry & Winn, L.L.P. He may be contacted at csk@wbwllp.com.

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