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6 Common Mistakes in Will Writing

Published November 20, 2020

Our day-to-day routines are centered around a series of ifs. These ifs help us navigate conflicts in our schedules, and manage time for the people and pastimes we love. We often say things like, “If I leave work fifteen minutes early, I can make it to my daughter’s dance rehearsal, “or, “If go the gym in this morning, I’ll have time for dinner with friends tonight.”

While death is not if, nor is it a thought we often work into our daily agenda, it is a when that requires the same attention to detail as our weekend schedules. Planning for the long-term is integral, and to reduce stress around these end-of-life scenarios, we’ve identified the five most common will writing mistakes and tips to avoid them.

1. Not having a will.

This may sound trite, but you need a will. Wills determine who receives your assets once you pass, who manages your estate and who will become the guardian of your children in the event of a fatal accident.

Wills help allocate smaller personal properties, too. In addition to organizing your real estate, debts and insurances, properly distribute private possessions like jewelry, heirlooms, furniture and artwork.

How to avoid: Write a will.

2. Not naming appropriate beneficiaries.

When naming beneficiaries, be sure to list an individual that is competent and willing to carry out your end-of-life wishes. Things can get particularly hairy when dealing with life insurance proceeds, annuities and retirement accounts. Improper designations can also result in negative income tax consequences, or worse – probate.

How to avoid: Use a beneficiary designation form provided by a recognized financial institution to ensure proper naming.

3. Losing your will.

Without a legal plan, people spend exorbitant amounts of time and money finalizing their wills. Imagine, after all this work, your will is misplaced. Moreover, imagine forgetting to inform your executor of your will’s location – your bequests, designations, and more are now obsolete. In some instances, legal officials will presume the missing document was purposefully destroyed by the testator.

If permitted by a judge, a copy of the will can be presented in lieu of the original document, but the original document is often required in order to officially appoint the executor and put the estate through probate.

How to avoid: Find a safe place to store your will and inform all necessary parties of its location.

4. Not reviewing estate plans regularly.

Life changes, and it is does, people often fail to update important legal documents like wills and estate plans. The addition or loss of children, parents, spouses, property, finances and the like can substantially alter your asset picture.

How to avoid: Review estate plans every two to five years, or after any major life events. Again, should the location of your will change, be sure to notify all necessary parties of its new location.

5. Overlooking the use of trusts.

Trusts, particularly revocable trusts, are essential to probate avoidance in estate planning. Trusts also guarantee a host of actions for decedents’ spouses and loved ones, including proper inheritance by a child and proper distribution of assets to named children in the event the surviving spouse remarries.

When it comes to real estate, people rarely consider holding their residences in a trust. Placing real estate in a trust, however, is certainly advisable if there are multiple beneficiaries of the estate.

How to avoid: Consider amending your estate plan with a trust. The extra cost in preparation will save you plenty of hardship in the long run.

6. Be wary of holographic wills

A holographic will is a will alternative, typically handwritten, produced by an attorney, and signed by the testator (the person leaving the will). Like many legal documents, holographic wills come with a unique set of issues, typically relating to illegibility and periodic changes that are not as clearly marked as they would be on a typed will.

Keep in mind that holographic wills are not recognized in all states.

How to avoid: Work with an attorney to prepare a proper will. You may save money up front by sticking to a handwritten version, but the expense of administering and/or interpreting a holographic will may cost more in the long run. Should a holographic will be your only option, be sure to write it as clearly as possible with little to no markups.

Check out the Did You Know? from our September 2020 edition of LegalSmart to find out a shocking statistic about will writing.