For some people, a Last Will and Testament serves as the foundation upon which their estate plan is built. Giving the importance of a Will, it should be error-free, particularly because any errors or problems with the Will are not likely to be uncovered until after the creator is gone, meaning it will be too late for you to fix errors or explain ambiguities. With that in mind, let’s look at some of the most common mistakes people make when creating a Will so that you can try and avoid making them yourself. While Wills (supplemented by powers of attorney and health care directives) may be all that is needed for someone with a modest estate, in California, persons having assets that include real estate or exceed $150,000.00 should seriously consider a trust-based plan so as to avoid the costs, delays and frustrations of a probate proceeding.
Mistakes to Avoid When Creating a Will
- Waiting too long. Over half of all Americans have yet to execute a Last Will and Testament despite acknowledging the importance of a Will. Often, the explanation for this seeming discrepancy is the belief that a Will is not needed until you have amassed a large enough estate and/or started a family. In truth, every adult should have a Will. There is simply no good reason to wait.
- Going the DIY route. In today’s electronic age, it is tempting to turn to the internet for everything, including legal forms. It may seem as though you are saving both time and money using a DIY Will form that you find online. You are more likely to cost your loved ones considerably more time and money than you save when it comes time to probate that Will. DIY Wills are notorious for failing to completely distribute an estate, being outdated and lacking state specific laws, and failing to interact properly with other estate planning documents.
- Appointing the wrong Executor. When you create your Will, one important decision you will need to make is who to appoint as the Executor. Your Executor oversees the probate of your estate. All too often people simply fill in the name of a spouse, parent, or adult child without giving any real consideration to whether that person is best qualified to be the Executor.
- Failing to nominate a Guardian. People associate creating a Will with ensuring that their estate is distributed according to their wishes. While that is certainly one important function of your Will, it is not the only important reason to create a Will. If you have minor children, your Will provides you with the only official opportunity you will have to nominate someone as Guardian of your children if one is ever needed. Do not overlook this important opportunity when you create your Will.
- Improper execution. Every state has specific requirements with regard to how a Will must be executed or signed. Some states require the Testator to sign in front of one or two witnesses while other may require a notary to witnesses the execution. A common mistake is to overlook the importance of proper execution. If you fail to execute your Will properly, according to the laws of the state where the Will is executed, that failure could become the basis for a Will contest after you are gone.
- Failing to update. Creating your Will is only the first step in ensuring that your assets are distributed as you wish following your death. You must also review and revise your Will on a routine basis as well as when certain life events require an immediate update. For example, if you get divorced, your Executor passes away, or you become a parent for the first time, you should review your Will and make any necessary changes as soon as possible.
- Failing to consult with an estate planning attorney. As discussed, using a DIY Last Will and Testament is never a good idea for several reasons. Failing to consult with an experienced and qualified estate planning attorney before creating a Will is equally risky. There is simply no equivalent to competent, experienced, and knowledgeable legal advice. You may be surprised to find that a Will is not your best option.
Timothy P. Murphy is an estate planning and elder law attorney whose practice emphasizes helping people to build, preserve and pass on their wealth. He works with his clients to accomplish their goals while avoiding unnecessary court proceedings and minimizing or eliminating exposure to death taxes.
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