5 Common Mistakes Made in Wills

Why should you execute your will properly?

Before worrying about what's in your will, make sure it's legally valid in the first place. Improper execution is one of the most critical mistakes you can make because it can render your entire will unenforceable, regardless of how carefully you've planned your bequests.

Most states require your will to meet specific signing requirements.

• Two witnesses: Nearly all states require at least two witnesses who are present when you sign your will and who also sign the document themselves.
• Witnesses cannot be beneficiaries: Many states prohibit anyone named in your will from serving as a witness, which can void their inheritance or even the entire document.
• Simultaneous presence: You and your witnesses typically must all be present together during the signing; signing separately at different times often invalidates the will.
• Sound mind: You must be of legal age (18 in most states) and mentally competent when signing.

State laws vary significantly in execution requirements. Some states recognize holographic wills (handwritten and signed by you without witnesses), while others don't accept them at all. A few states require notarization, and others offer a "self-proving" affidavit option that simplifies the probate process later. If you've moved to a new state since creating your will, verify that your document meets your current state's requirements.

The consequences of improper execution are severe: your will may be thrown out entirely, and your assets would then be distributed according to your state's intestacy laws, potentially going to people you never intended to inherit.

What are the 5 common mistakes made in wills?

1. Forgetting to update your will

You really meant to get around to updating your will after your divorce, your child's birth, or your big move, but you just haven't found the time. The right time is now. Failure to update your last will after major life changes can result in unintended bequests and leave your estate in chaos.

Key events that should trigger a will review:

• Marriage, divorce, or remarriage
• Birth or adoption of a child
• Death of a spouse or beneficiary
• Moving to another state
• Starting or selling a business
• Significant changes in financial circumstances

The importance of naming guardians for your minor children in the event of the death of both natural parents cannot be stressed enough, yet only 36% of parents with minor children have a will in place. Without this important provision, you will have no say in who raises your children.

If a will is not updated to reflect these major changes, your assets may not pass according to your intended plan. If you wish to have a say in how your belongings are divided after you die, you need to keep your will as up to date as possible to reflect your current assets and intentions.

2. Appointing the wrong executor

The executor of an estate is the person legally responsible for settling the deceased's affairs, including:

• Locating and managing estate assets
• Paying outstanding debts and taxes
• Distributing remaining assets to beneficiaries
• Filing necessary court documents during probate

Your executor will be the one who administers your estate, so choose wisely. If your chosen executor can no longer serve in this capacity for whatever reason (e.g., no longer of sound mental capacity, has moved out of the country), you need to change your will.

Many people choose a family member or close friend, and this can be a good choice as long as that person meets key criteria.

• Sound mind: Capable of handling financial and legal responsibilities
• Willingness: Comfortable with the time commitment and duties involved
• Impartiality: Won't exert undue influence over your estate

For complex estates, you might need to select an executor with legal or financial experience.

When reviewing candidates to serve as your executor, it's a good idea to decide based on their ability and willingness to adhere to your wishes rather than any existing personal relationship you might have with the candidate.

3. Leaving out beneficiaries

This mistake may or may not coincide with one's failure to update a last will, but regardless, you should very carefully consider who exactly you want to name as beneficiaries in your will during the estate planning process.

While certain beneficiaries might seem obvious, such as children or lifelong friends, no assumptions are made during the probate process. If you want a person to have some asset of yours after you die, that desire must be clearly articulated in your will.

Also, if you are intentionally leaving someone out of your will or providing for distribution in an unusual way, you should make it crystal clear to prevent family disputes or challenges after your death.

Trying to provide for every beneficiary or individual excluded from the will can be challenging. In particularly complex instances, additional legal assistance may be required to adequately cover all possible scenarios.

Another note on beneficiaries: Some states prohibit a beneficiary who also served as a witness at the will's signing, so it's usually best to have witnesses who are not named elsewhere in the will.

4. Not accounting for all scenarios

It's important to carefully consider your assets and include a provision for everything that you wish to distribute to your beneficiaries. It is also a good idea to provide some what-if provisions in the event a named beneficiary cannot inherit as intended (e.g., the beneficiary has died).

Including a residuary clause is a good way to ensure all your assets are distributed to your beneficiaries rather than taken by the state. Often called a "leftovers" clause, it covers assets remaining after specifically mentioned items have been distributed, such as a bank account you opened after writing your will or property you forgot to include.

Don't forget about your digital assets, either. In today's world, your estate likely includes online accounts, digital files, and virtual property that hold both sentimental and monetary value. These assets include social media profiles, email accounts, cloud storage (photos, documents), cryptocurrency wallets, digital music or media libraries, and online business accounts. Unlike physical property, accessing these assets after your death can be complicated by passwords, two-factor authentication, and terms of service agreements that may prohibit account transfers.

To address this, create a digital asset inventory that lists your accounts and provides instructions for access, either through a password manager or a secure document stored separately from your will. Some states have adopted the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA), which gives your executor legal authority to manage digital accounts, but you should still specify your wishes for each account in your estate plan. Digital assets with significant value, such as cryptocurrency holdings or an online business, deserve specific mention in your will rather than being left to a general residuary clause.

If a will does not provide sufficient instructions for some or all of the deceased's assets, the assets are instead distributed according to the state's intestacy laws. These laws typically call for assets to be distributed to the closest surviving relatives, although the state may take ownership of the assets if no relatives can be found.

5. Overlooking non-probate assets and beneficiary designations

Here's a mistake that catches many people off guard: certain assets bypass your will entirely and transfer directly to designated beneficiaries, regardless of what your will says. These are called non-probate assets, and failing to account for them can result in your assets going to people you never intended.

Common non-probate assets include:

• Retirement accounts. 401(k)s, IRAs, and pensions transfer to whoever is named on the account's beneficiary designation form
• Life insurance policies. Proceeds go directly to the named beneficiary, not through your will
• Payable-on-death (POD) accounts. Bank accounts with POD designations transfer automatically to the named person
• Transfer-on-death (TOD) securities. Brokerage accounts and investments with TOD designations work the same way
• Jointly owned property. Assets held with rights of survivorship automatically pass to the surviving owner

The critical mistake many people make is forgetting to update these beneficiary designations after major life changes. If you got divorced but never changed the beneficiary on your 401(k), your ex-spouse may still receive those funds, even if your will leaves everything to your current spouse or children. Courts have upheld beneficiary designations over conflicting will provisions because these accounts operate under contract law, not probate law.

Review your beneficiary designations at least annually and after any major life event. Make sure they align with your overall estate plan. Also consider naming contingent (backup) beneficiaries in case your primary beneficiary passes away before you do.

Why should you plan for incapacity during your lifetime?

A will only takes effect after you die; it provides no protection if you become incapacitated during your lifetime. Many people focus so intently on planning for death that they overlook the equally important question: who will make decisions for you if you're alive but unable to make them yourself?

A comprehensive estate plan should include these additional documents.

• Durable power of attorney: Designates someone to handle your financial affairs (paying bills, managing investments, filing taxes) if you become incapacitated.
• Healthcare power of attorney (or healthcare proxy): Authorizes someone to make medical decisions on your behalf when you cannot.
• Living will (advance directive): Documents your wishes regarding end-of-life care, such as life support, resuscitation, and pain management.

Without these documents, your family may need to petition a court for guardianship or conservatorship, a costly, time-consuming, and public process that can take months while you need immediate care. The court may appoint someone you wouldn't have chosen, and family members may disagree about what you would have wanted.

Think of your will as just one piece of a complete estate plan. These incapacity documents work alongside your will to protect you during life and ensure your wishes are honored after death.

Why should you not rely on DIY wills without proper guidance?

Online will-making tools have made estate planning more accessible than ever, but they're not the right solution for everyone. Using a DIY approach without understanding its limitations can leave your estate plan full of holes, or worse, create a document that doesn't hold up in court.

Common pitfalls of going it alone include:

• Missing state-specific requirements. Estate laws vary significantly by state, and a generic template may not meet your jurisdiction's execution or witness requirements.
• Ambiguous language. Legal terms have precise meanings, and unclear wording can lead to disputes among beneficiaries or unintended interpretations by the court.
• Overlooking complex situations. Blended families, special needs dependents, business ownership, and properties in multiple states often require provisions that standard templates don't address.
• Missing tax planning opportunities. Larger estates may benefit from strategies like trusts or gifting that reduce estate tax liability.

That said, DIY wills can work well for straightforward situations: single individuals or married couples with modest assets, no business interests, no minor children with special needs, and estates well below the $15 million federal estate tax threshold. If your situation is more complicated or if you simply want peace of mind that everything is done correctly, consulting with an estate planning attorney is a worthwhile investment. Even a single consultation to review a DIY will can catch errors before they become problems.

FAQs on common mistakes made in wills

Does a mistake in a will make it invalid?

It depends on the type and size of the mistake: minor issues like typos or incomplete addresses might not affect a last will's validity in a legal setting, but larger errors, such as failing to follow the signing requirements, can invalidate the will.

How do you fix mistakes in a will?

A will with an error must either be rewritten entirely or corrected through an amendment called a codicil—both require proper witnesses to be legally binding. Once finalized, destroy previous versions to avoid confusion.

How is a trust different than a will?

A trust is a popular alternative to a will for people with a particularly complicated estate. In most cases, assets held in a trust can be distributed privately, avoiding probate and allowing the deceased's final wishes to be honored without legal intervention.

How big does an estate need to be to be responsible for paying a death tax?

For 2024, the federal estate tax exemption is $13.61 million per individual. However, some states impose their own estate taxes with exemptions as low as $2 million, so check your state's specific requirements.

Do I need to plan for estate taxes when writing my will?

Federal estate taxes typically only apply to estates worth over $13 million, but some states have lower thresholds. Consult an attorney or tax professional to determine if estate tax planning applies to your situation.

Carter Giegerich and Michelle Kaminsky, Esq., contributed to this article.