A Last Will and Testament typically serves as the foundation of an estate plan. Although the concept of a Will is rather straight-forward, mistakes can – and often are — still made during the creation of a Will. To help prevent you from making them, let’s look at some common mistakes to avoid when creating your Will.
- Using a “DIY” Will form. It may seem as though you are saving both time and money using a DIY Will form that you find online. In reality, 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 DIY Wills are notorious for failing to completely distribute an estate, being outdated and lacking state-specific laws, and failing to interact properly with other estate planning documents.
- Choosing the wrong person as your Executor. Testators (the person creating a Will) often fail to take the time to contemplate the best choice for their Executor. Instead, they simply fill in the name of a spouse, adult child, or close friend, as the Executor of their estate without giving any real thought as to whether that person is the best choice or not. Doing this can lead to delays or costly mistakes when it comes to probating the estate. Ideally, you should choose someone who will be able to focus on the practical tasks associated with administering your estate despite their grief and who has some financial and/or legal knowledge that can be used during the probate of your estate.
- Failing to distribute the entire estate. This mistake is particularly common when going the DIY route. DIY legal forms are notorious for being incomplete and lacking instructions. Specifically, DIY Will forms often fail to completely distribute an entire estate because additional documents are frequently required to do so. The DIY forms, however, fails to mention that additional documents may be needed. The failure to completely distribute the estate results in the need to open up an intestate estate probate which can significantly prolong the probate process and completely defeats the purpose of making a Will in the first place.
- Making direct gifts to minor children. Understandably, as a parent you want to provide for your minor children; however, by law, a minor cannot inherit anything from your estate. Therefore, leaving assets to your minor child in your Will serves only to complicate the probate of your estate because a court may then be forced to decide who will guard those assets until your child reaches the age of majority.
- Counting on your Will to accomplish everything. A Will can accomplish many things, including the distribution of your entire estate after you are gone; however, there are things it cannot do. For example, your Will does not help in the event of your incapacity. Your Will also does not help provide guidance on issues related to end of life medical decisions nor is it the best place to mention your funeral and burial wishes. To accomplish those goals, you will need additional estate planning tools and strategies.
- Using a Will When a Trust is the Better Solution. While a Will may be a good enough estate planning tool for a modest estate, if your estate assets exceed $150,000 or include real estate, a Will or some other court-based proceeding may be needed to settle the estate, often at a cost far in excess of setting up a trust-based plan in the first place. It is prudent to discuss your options with an experience and qualified estate planning attorney to find the plan that is best for you.
Contact Us
Please download our FREE estate planning checklist. If you have additional questions or concerns about creating you Will, contact the Sacramento estate planning attorneys at the Northern California Center for Estate Planning & Elder Law by calling (916)-437-3500 or by filling out our online contact form.
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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