Wills: Avoiding Common Mistakes

It’s always a great idea to have an estate planning attorney custom-write your will. When you draft  your own will, use software, an online service, or a fill-in-the-blank template, the chance of critical mistakes rises dramatically. Here are the most common mistakes, omissions, and critical problems that I see from pre-printed or web-based wills.

Leaving out Important Assets

It’s surprisingly easy to forget about some assets. When you fail to account for all your assets, then it is unlikely for the beneficiaries to have complete knowledge of your assets after your death. Some people leave out a bank account, mineral rights to property, inherited property, property they got before their current marriage, pets, farming equipment or the proceeds from crops, timeshares, and vacation property.

Naming the Wrong Person as Executor

The executor is the person who’s responsible for settling your estate, paying any remaining debts you may owe, and dispersing your assets to your beneficiaries. The executor should be someone you can trust to carry out your wishes.  If you put the burden of settling your estate into the hands of someone who’s not up to the task, they could end up creating a huge mess for your heirs to sort out. The executor should not be someone who is also a beneficiary to your will. Doing this could also cause major headaches for your heirs in court and probate.

Not Naming a Guardian or Guardians for Children

One of the things that a will allows you to do is name one or more persons as the legal and financial guardian for your children in your place. If you don’t appoint a guardian, the court may step in and choose someone for them. For parents, this decision and properly documenting it in your will, is the most important step. Too many self-produced wills fail to do this, or do so in a manner not compliant with state law.

Failing to Provide for Assets Not Specifically Named

After you have included all your current assets, you still must consider that over time you will acquire more assets. There must be a provision in your will to handle these items, otherwise they will fall into the probate process and be distributed in accordance with state law defaults. Your attorney can draft a provision that will account for even the assets you get after your will has been written.

Not Properly Witnessed and Self-Proved

In Virginia, there are specific laws governing what is or is not a legal will. Most wills must be witnessed by two unrelated persons who are not beneficiaries under the will, and are not the executor of the will. Often they must also be notarized by an uninterested party. Your estate planning lawyer can draft a self-proving affidavit that will make probating the will much simpler for your heirs.

Not Dating the Will

An undated will is invalid. You’d be surprised how many wills purchased online are never properly dated, which will make them about as useful as your dinner napkin.

Not Updated When Marital Status Changes

If you get married or get a divorce, your will must change. It is difficult to see what happens when a remarried person dies and his will still names he ex-wife, who he hasn’t seen for decades, to receive his property and execute his wishes.

Not Updated After the Birth of A Child

Your will must be updated with the birth or adoption of each child.  If you have had the joy of a new child, it’s time for a will update.

Ignoring State-Based Laws and Rules

Many of the online will drafting “services” say that their wills are compatible with all 50 states, or that their will is customized for each state. Nevertheless, wills generated by these services often fail to account for nuances in state law.  Every state has a different set of laws to determine what is a legal will and who can write one. Generally, you have to be at least 18 to make a will, although some states may grant an exception if you’re younger but legally married. Depending on where you live, it may need to be typed, as some states permit handwritten or videotaped wills.

If specific state laws aren’t followed you run the risk of it being declared invalid. Specifically, you’ll want to find out if there are any restrictions on age, the number of witnesses that are required to sign the will, who can serve as a witness, whether the parties involved are competent to serve as you’ve requested, whether the will must be notarized, and who can notarize a will in your state.

Not Telling Loved Ones About the Will

A will is not effective unless your heirs know where it is and can access it. Be sure to tell your family and loved ones where your will is, and provide a way for them to get to it in the event of your death.