5 Commons Mistakes Made in Wills

1. Forgetting to update your will

You really meant to get around to updating your will after your divorce, the birth of your child, your big move, the start of your now-blossoming business, but you just haven't found the time. The right time is now.

When you have experienced a major life change or change in financial circumstances, such as a move to another state; birth; death; marriage; or the opening of a new enterprise, you must take another look at your last will. Failure to do so could result in unintended bequests and inheritances, and leave your estate in chaos. 

The importance of naming guardians for your minor children in the event of the death of both natural parents cannot be stressed enough. Without this important provision, children will be assigned a legal guardian by the state and potentially wind up in the foster system rather than with an adult of your choosing.

In the event a will is not updated to reflect these types of big changes, assets related to a new business or change in family size most often wind up being distributed through the probate court process. If you wish to have a say in how your belongings are divided up after you die, you need to keep your will as up-to-date as possible to reflect your current assets and intentions. 

2. Not planning for estate taxes

The Internal Revenue Service, as well as your state tax system, is surely on your mind at least once a year—probably mid-April. Add another time: When writing your will, you cannot afford to forget about estate taxes (death taxes), the laws of which are constantly changing.

Estate taxes are a form of tax imposed on a deceased individual’s assets when they are transferred to the person’s beneficiaries. There are a number of deductions and exemptions on these taxes, some of the most common being assets transferred to the deceased’s surviving spouse or certain charity organizations.

These taxes are levied at both the state and federal level, although state rules for estate taxes vary significantly from place to place, and federal estate taxes are generally only applicable to very sizable estates worth millions of dollars.

One of the most common mistakes people make when they create last wills is assuming that their estates aren't worth enough to come under the estate tax system. Although federal estate taxes usually only apply to very large estates, some states have their own death taxes that have lower size thresholds. The state and federal death taxes can also change, so it is important to talk to an attorney or tax professional to see if you need to plan for estate tax.

Failure to pay taxes on an estate that meets these thresholds for state and federal death taxes can carry severe penalties, ranging from interest and fines to asset seizure and legal action brought by the IRS against the taxpayer.

3. Appointing the wrong executor

The executor of an estate is the person legally responsible for settling the deceased’s affairs. This includes paying debts out of the estate and distributing the remaining assets to the deceased’s chosen beneficiaries.

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 to serve as the executor of their estate, and this can be a good choice as long as that person is of sound mind, comfortable with the responsibilities of the role, and won’t exert undue influence over your last will. In other cases, you might need to select an executor with some legal or financial experience to settle your estate. It’s all based on your specific needs and the complexity of your estate.

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.

4. 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 named as a beneficiary in your will during your estate planning process.

While certain beneficiaries might seem obvious, like children or lifelong friends, there are no assumptions 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 for it to be considered by the executor of your estate.

Also, if you are intentionally leaving someone out of your will or providing for distribution in an unusual way, you might want to include why you have done this 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 complicated instances, extra legal assistance may be required to sufficiently cover all possible scenarios.

A trust is a popular alternative to a will for people with a particularly complicated probate process. In most cases, assets protected by a trust can be distributed privately without going through the probate process, making it easier to distribute assets according to the deceased’s final wishes without legal intervention.

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.

5. Not including all assets

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).

Assets included in a will go far beyond just money in your accounts or real estate you own. You should address intangible assets like investments, bank accounts, and intellectual property, as well as tangible assets like vehicles, personal property, or land. If something you own has monetary value, it’s generally a good idea to include it in your will.

Including a residuary clause is a good way to make sure all of your assets are distributed to your beneficiaries and not taken by the state. This is often called a "leftovers" clause, because it includes just that—those assets that are leftover after items specifically mentioned have been distributed.

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 in cases where no relatives can be found.

How to create a mistake-free will

One of the biggest benefits of an up-to-date will is the peace of mind it can offer, knowing your estate will be settled exactly how you envision it in the event of your death. Completing your will accurately and comprehensively can be a struggle, especially if you have a large number of assets, beneficiaries, or both.

LegalZoom’s online will services can assist you in navigating the process of drafting a will quickly and easily.

FAQs

Does a mistake in a will make it invalid?

It depends on the type and size of the mistake—minor things like typos or incomplete addresses might not challenge a last will’s validity in a legal setting, but bigger errors that substantially affect the meaning of the language in the will mean it is not a valid will and must either be corrected or discarded.

How do you fix mistakes in a will?

Typically, a will with an error must either be rewritten entirely or corrected through an amendment to the will known as a codicil. Just like the original will, its author must provide proper documentation for the new will or codicil, and it must be signed in front of proper witnesses to be legally binding. Once the new document is finalized, destroying previous wills is a smart idea to avoid confusion.

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

The value threshold of an estate to qualify for an estate tax varies widely from place to place. The lowest threshold is Oregon, which levies an estate tax on estates valued at $1 million or more. The highest threshold, on the other hand, is in Connecticut, which exempts estates worth less than $13.6 million from death taxes.

Michelle Kaminsky, Esq. contributed to this article.