If you are about to draft a will, have you considered the consequences of getting it wrong? An improperly prepared will create significant challenges, ranging from legal disputes to emotional and financial strain for your family. Without careful attention to detail, ambiguities or omissions can lead to costly court battles, delayed inheritances, or other unintended consequences.
Oversights like failing to align your will with local laws, neglecting to update it over time, or not accounting for contingencies, such as unforeseen changes in circumstances or family dynamics, can render key provisions invalid and leave your estate vulnerable to mismanagement or disagreements.
To highlight the importance of getting your will right, we’ve compiled a list of the 10 common mistakes to avoid when drafting your will.
10 Common Mistakes While Drafting a Will and How to Avoid
Failing to Update the Will Regularly
It’s crucial to update your will after major life events. For example, if you marry, divorce, or have children, your beneficiaries may need to be adjusted. Similarly, if someone named in your will passes away or if you purchase a new home, these changes should be reflected.
How to Avoid
Changes to your will must be done correctly. Simply adding notes or changes isn’t enough.
You can make an official amendment called a codicil or create an entirely new will. Both require signing and witnessing to ensure their validity.
Using Unclear Language and Ambiguities
For instance, if you leave an asset to “my children” without naming them, it may exclude stepchildren or adopted children unintentionally. Similarly, vague instructions like “my possessions” or “reasonable provision” can be open to interpretation, causing confusion about what you truly intended.
How to Avoid
To prevent these issues, be specific and precise in your wording. For example, instead of saying “my diamond ring,” clarify which ring you mean, and specify the recipient by full name and relationship.
Not Accounting for Debts
When someone passes away, their debts must be settled before their estate can be distributed. The largest and most common debts, such as mortgages, can reduce the value of the estate and affect the inheritance beneficiaries receive. For example, if you leave your second child an investment portfolio worth $500,000, but it has a $100,000 loan attached, that child would only inherit $400,000 after the debt is paid. If you fail to account for debts in your will, some beneficiaries may inherit assets that are effectively reduced in value.
How to Avoid
Specify in your will how debts like mortgages, loans, or credit card balances should be handled (with the help of an estate planner). You can direct that assets be sold to cover these debts before distributing the remaining estate to beneficiaries.
Overlooking Non-Transferable Assets
Another common mistake made while drafting a will is overlooking non-transferable assets, such as jointly owned properties, life insurance, superannuation funds, and certain bank accounts. While people often include tangible assets like property and jewelry in their will, they may overlook non-transferable assets such as jointly owned properties, life insurance, superannuation funds, and certain bank accounts. These assets pass automatically to the co-owner or beneficiary, bypassing the will. Digital assets, like social media accounts and online businesses, are also often neglected.
How to Avoid
To avoid unintended distributions or disputes, create a comprehensive list of all assets, including non-transferable ones, and specify who should receive them in your will.
Choosing an Inappropriate Executor
This is one of the most common mistakes to avoid when drafting your will. Executors are responsible for settling debts, distributing assets, and handling legal matters. Appointing an unreliable or inexperienced executor can cause delays and conflicts by leading to poor decision-making, mismanagement of assets, and failure to follow proper legal procedures. They may struggle with navigating complex estate laws, resulting in costly mistakes or delays in settling debts and distributing assets.
How to Avoid
Choose someone organized, trustworthy, and capable of managing both practical and emotional demands. While many appoint a family member or friend, consider a professional executor, like a solicitor or corporate executor, who has experience in managing estates.
Not Understanding the Tax Code
Many people overlook the potential tax consequences of their estate, which can lead to substantial financial burdens on their beneficiaries. Estate tax laws can involve capital gains tax, inheritance tax, and income tax, all of which affect how much your beneficiaries receive.
How to Avoid
Consulting with an estate planner or tax consultant can help you structure your will in a way that minimizes tax obligations. Strategies such as setting up trusts, gifting assets during your lifetime, or utilizing tax exemptions can protect your estate and reduce the amount beneficiaries need to pay.
Not Choosing the Right Witnesses for Your Will
For a will to be valid, it must be signed in the presence of two adult witnesses. These witnesses must not be beneficiaries or spouses of beneficiaries in your will to ensure impartiality. Choosing the wrong witnesses or failing to meet legal requirements can result in your will being declared invalid.
How to Avoid
To avoid the issue of not choosing the right witnesses for your will, ensure that you select individuals who meet the following criteria.
- Witnesses should be reliable, literate, and capable of supporting the will’s validity if contested in court.
- They must be at least 18 years old, mentally competent, and physically present when the will is signed.
- Also, the witnesses cannot have a direct financial interest in your estate.
Excluding any Step-Children from Your Will
Simply referring to “my children” in your will does not automatically include step-children, even if you’ve raised them as your own. To include them as beneficiaries, you must explicitly list them by name in the will. Failing to do so can lead to confusion or unintended exclusions. If you intentionally leave someone out, it’s essential to seek legal advice.
How to Avoid
A lawyer may suggest adding a supplementary statement explaining the exclusion, which can help defend against challenges to the will. However, this doesn’t prevent the excluded person from contesting it.
Note: Legally adopted children are treated the same as biological children for inheritance purposes, but step-children must be specifically mentioned to avoid legal disputes.
Not Knowing State Law
Wills are governed by state-specific laws, which can affect their validity and interpretation. What’s valid in one state may not be in another, so it’s important to understand the laws where your will is executed. Some states have specific requirements, such as a set number of witnesses, while others allow electronic or handwritten wills.
How to Avoid
To avoid issues with state law, research the specific requirements of the state where your will is executed, consult an estate planning attorney, and consider creating separate wills for properties in multiple states to ensure your will is valid.
Failing to Include Contingency Plans in Your Wills
Neglecting contingency plans in a will, such as what happens if a beneficiary passes away first, can lead to confusion and disputes. Without clear instructions or backup beneficiaries, estate distribution may face delays or legal challenges.
How to Avoid
To avoid this, include alternative beneficiaries and detailed provisions to cover unexpected scenarios. Consulting an estate planning professional ensures your will remains clear, adaptable, and legally sound.
How a Will Attorney Near You Can Help?
Let’s give a simple answer to this simple question – why should you hire a will attorney?
A will attorney near you can provide invaluable assistance in creating a legally sound will tailored to your specific needs. They ensure your assets are distributed according to your wishes, minimizing disputes and confusion among heirs. By understanding local laws and regulations, these professionals help avoid common mistakes that could render your will invalid.
A skilled will attorney near you, like those at Mazurek, Belden & Burke, P.C., can provide guidance on appointing guardians for minor children, establishing trusts, and addressing tax implications. With our team’s extensive experience, we ensure your wishes are clearly documented to protect your loved ones and your legacy.