The unauthorized practice of law looms large over access to justice in Texas, especially with respect to estate planning and probate. For most Texans, the cost to hire an attorney to draft or probate a will is prohibitive, and legal aid assists only a small portion of the persons in need. Low and no-cost forms online help, but the quality varies and it’s considered the unauthorized practice of law for the publisher or anyone but a licensed attorney to tell testators which form is best for them. Section 81.101, Texas Government Code. In 2015, Senate Bill 512 directed the Texas Supreme Court to promulgate forms for everyone’s use, including simple wills for married and single individuals with adult, minor, or no children.
Mission accomplished
Eight years later, the forms are here and they are good. On May 5, 2023, the Texas Supreme Court gave final approval to its forms and instructions in Misc. Docket No. 23-9022. Instructions are embedded, and it’s hard to pick the wrong form. Just select from married and unmarried, with or without kids. The Texas Supreme Court posted the forms at www.txcourts.gov/forms. Texas Legal Services Center posted the same forms and more with additional explanations at: texaslawhelp.org/article/will-forms-approved-by-the-supreme-court-of-texas.
The forms and instructions are in easy-to-understand language. Bilingual English-Spanish versions are available. Probate courts are required to accept a promulgated form even with minor mistakes in completion. The forms are not appropriate for larger estates, but they offer a welcome alternative to intestacy for those in a hurry or on a budget.
One size does not fit all
Time will tell if the instructions are sufficient to redirect those whose situations are too complicated for the promulgated forms. Some pitfalls are disclosed, e.g., the forms are inappropriate for beneficiaries who receive government benefits (“get advice from a lawyer” readers are advised). Some are disclosed but not resolved, e.g., the forms don’t change the beneficiaries already designated on account agreements, insurance plans, or transfer on death deeds; instructions don’t explain how to coordinate beneficiary designations with the will (these forms are so simple you really can’t). Some pitfalls are not flagged or explained, e.g., survivorship agreements are unaffected by the forms, incapacitated beneficiaries over 21 (think an elderly widow) may require a guardianship a contingent trust could avoid, and no tax planning or asset protection is provided (How much will the IRS take? If children divorce, will an ex get the inheritance?).
Probate remains a problem
The forms don’t avoid probate on death or the necessity of a lawyer for most estate administrations. The smallest estates ($75,000 or less) can still be collected with a small estate affidavit, but not if the decedent left a will, undercutting the whole point of free will forms. Section 205.001, Texas Estates Code. In Texas, with limited exceptions it is considered the unauthorized practice of law to file probate applications without a lawyer. Estate of Maupin, 2019 WL 3331463 (Tex. App.–Corpus Christi-Edinburg 2019, no pet.) (pro se applicant precluded from appointment as independent executor). Steele v. McDonald, 202 S.W.3d 926 (Tex. App.–Waco 2006, no writ) (independent executor who is not attorney may not appeal pro se on behalf of estate). In re Guetersloh, 326 S.W.3d 737, 739-40 (Tex. App.—Amarillo 2010, no pet.)(trustee may not appear pro se in a representative capacity). Pro se beneficiaries have always been allowed to probate a will as a muniment of title, but only if they are the sole beneficiary; if Mom named two beneficiaries, neither one can probate her will as a muniment of title without hiring a lawyer to represent them before the probate court.
Something can be much better than nothing
No one with a taxable estate or disabled or irresponsible beneficiaries should rely on these forms as anything but a temporary solution. Regardless, the promulgated forms offer a quick, free way anyone can reduce simple estate plans to writing. Those facing surgery or travel without the will or trust they want can often get away with one of these forms now and a more robust plan later. Texans with less than $75,000 in savings may welcome these forms as a permanent alternative to a lawyer or an online form of suspect provenance.
