12 Things That Are Wrong with Your Last Will

12 Things That Are Wrong with Your Last Will

by Michelle Kaminsky, Esq., August 2016

If you have a last will and testament, give yourself a pat on the back for taking the initiative to get your estate in order.

Wait! Not so fast.

You may think you’ve provided yourself great peace of mind and spared your loved ones from hassle after your death, but are you 100% sure your will is valid and correctly expresses your wishes?

Unfortunately, although many people believe they have executed a legal will that reflects their wishes, that’s not always the case. Several common mistakes in making a will can mean that the document is invalid or does not accurately reflect the intentions of the testator (the person writing the will). 

What would that mean for your estate? If the will isn't valid, you would die intestate, or without a will, and state law would govern the distribution of your property with no regard for your wishes. Alternatively, some of your bequests could fail and/or land your family in probate court wasting time and money trying to correct your errors.

Check out these common mistakes people make when creating a will and learn how to avoid them.

1. Choosing A Bad Executor

Your executor is the person who will administer your estate, so choose someone you trust. If your executor cannot serve in this capacity (e.g., no longer of sound mind, has died), you need to change the executor in your will. Also, let the executor know you’re choosing him or her before you draft the will to make sure they will accept the responsibility. 

2. Forgetting About The Kids

It is critical that you name a suitable guardian (both physical and financial, these can be different people) for any minor children in the event of the death of both parents. Again, get the consent of the guardian before drafting the will. Also, if you intend for your children to inherit differently, clearly distinguish between children if you have children-by-birth, step-children, etc. 

3. Forgetting Assets

Everything you own must be included in your will along with a provision for its distribution. Include what-if provisions, too, in the event that a named beneficiary cannot inherit as intended (e.g., the beneficiary has died).

One way to avoid the “missing asset” mistake is to update your will whenever you acquire anything new, but oversights happen, so a residuary or “leftovers” clause is key. This provision ensures that any assets “left over” (not specifically named in the will) are still given to your beneficiaries of choice.

If you have property not included in the will and no residuary clause, you’ll land squarely in the land of the intestate (or at least partially so with regard to the missing assets).

4. Forgetting About Taxes, Debts, And Other Financial Considerations

Not considering potential debts (such as your own debts and bills plus any income, gift, or federal and state estate taxes) could mean your beneficiaries inherit less than you wanted. Even though the threshold for federal estate tax is very high ($5.43 million as of 2015) don't just assume your estate is too small to fall under the estate tax system: your state estate tax laws may have a much lower threshold. 

Some property such as life insurance proceeds and trusts, although not in your estate, may still be taxable.

5. Forgetting The Details

Describe all gifts and bequests clearly so everyone knows exactly what you mean. If you think there might be some familial fighting, include reasoning for your decisions.

6. Getting The Facts Wrong

Get the facts straight regarding your assets and beneficiaries — locations, descriptions, beneficiaries’ relationships to you, etc. Leave no room for doubt as to how you meant your property to be distributed.

7. Not Using Full, Accurate Names

Double and triple-check that you’ve got everyone’s legal names correct in your will.

8. Forgetting To Use Non-Legalese

Yes, your last will will go through the probate court system, but that doesn’t mean it should be written in the language of lawyers. Write your will in plain, easy-to-understand English and make sure you understand exactly what is written.

9. Forgetting To Fill In The Blanks

You can make a will online using an online will form, but if you do, read over the final document several times to ensure that you’ve filled in all the blanks and changed any text as necessary. If you don’t correctly fill out an online last will and testament form, it could mean big problems later.

10. Not Executing Will Properly

Once you create a will, it must be executed according to your state’s law or else it won’t be valid. Usually you need to sign and date the will and have at least one witness, but requirements vary greatly, so check your state’s law for details.

11. Not Executing Codicil To Will Correctly

Up until your death, you can change your will whenever you like. Amending a will through a codicil, however, often needs to be done in a particular way according to state law, so you must be certain you’re abiding by it in order for your changes to take effect.

12. Forgetting To Update

Births, adoptions, deaths, divorces, moves to a different state, new business ventures — these are all life events that should prompt you to take a look at your will and make sure everything is up to date.

If you’re concerned about your estate plan, you can talk an independent attorney for an affordable price. The LegalZoom personal legal plan lets you see customer reviews of attorneys, schedule an appointment online, and gives you deep discounts if you need to retain the attorney for additional help.

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