I have seen my share of client-drafted wills. While most people opt to have a lawyer draft their last will and testament, there is no requirement that an attorney do so. If you do opt to draft your own will, make sure to avoid the following five mistakes that I repeatedly see in layman-drafted documents.
1. Not Detailing Your Family Tree
The core idea of a will is that you can leave your money to whomever you choose. However, most people don’t understand that your nearest family members are allowed to contest your will in court. Yes, they will most likely lose that contest, but your next of kin do have the right to know you are disinheriting them, so they must be placed on notice when you die and your will is submitted to the court for probate. The court will want to know your nearest heirs, particularly if you are estranged from them, since the court assumes they are the most likely parties to contest your will.
Include the members of your family tree (spouse, children, parents, siblings) who are alive or deceased (so that the court knows that these people do not need to be put on notice) and addresses of where your next of kin reside.
2. Specifically List Those You Wish to Disinherit
If a close family member is being disinherited, make sure to state it in the will. Excluding your next of kin or ignoring their existence does nothing to bolster the validity of your will and can give the individual grounds to contest the validity of the entire document, potentially tying your estate up in a legal fight that can span years. Some states also have their own laws regarding the right to inheritance and percentages for specific family members. Without specific instructions for disinheriting these individuals, the court may rely on current law or precedent to determine the distribution of assets.
3. Leaving Funds to Beneficiaries Who are Minors
Minors (children under the age of 18) are not legally able to own assets and should not be named as beneficiaries. If a minor beneficiary is specified to receive significant amounts of money outright, a court would be required to hold a guardianship or conservatorship proceeding where a judge would appoint someone to oversee the funds (at your estate’s expense) to safeguard them until the child reaches 18. This guardian appointment is something you would have no control over, so consider who you would want to manage these funds for the benefit of the minor and specify that individual along with any related instructions clearly in your document.
If you choose to leave a bequest to a minor, allow your executor to place it into a Uniform Transfers to Minors Act (UTMA) account. This allows the funds to be administered by a custodian of your choice until the minor reaches 21. 21 is still a young age for a person to have access to significant funds, but UTMAs do avoid court oversight, because the account is not being given directly to a minor.
For larger sums, you should consider creating a testamentary trust in your Will. These trusts can be as detailed as you want. You can say “funds shall be used for the beneficiary’s health and education until she reaches 30, at which point all remaining trust funds are to be distributed,” or “the Trustee shall have full discretion how funds are used.” You will name a trustee, and clearly state who receives the funds if something happens to the beneficiary.
4. Selecting Less Than Desirable Executors
Naming an appropriate executor is critical, because this person will be in charge of your estate’s affairs. Your executor “steps into your shoes,” meaning he can enter into contracts, collect your property, pay taxes and creditors, distribute your estate, order financial and medical records … basically everything you can do. You should attempt to name the most trustworthy and capable person you can think of to serve as executor.
This person also has to withstand the pressures and questions of beneficiaries regarding the status of the estate and the ultimate disposition of assets to heirs.
Unfortunately, the control afforded to your executor can also lend itself to the temptation of removing assets prematurely or without authority. Every attempt should be made to both document items and assets in the estate PRIOR to distributing assets to anyone, including the executor if they also happen to be an heir (such as an adult child).
Unfortunately, it is not unusual for Executors to fall victim to the thought that ‘well I’m supposed to get x%, or that highly valuable piece of art is coming to me anyway, so I’ll just take mine now’ or simply cherry picking the items they want without ever acknowledging the existence of the items to the court or the other beneficiaries. This is called self-dealing and can cause a number of problems in the accurate disposition of the estate, not to mention hostility with other family members. To avoid this, it’s important to consider both the financial security of the person you name as executor, as well as their character and knowledge of the process to avoid any future problems.
5. Naming No Few or Too Many Executors
One mistake people make is naming either too few or too many executors. If you name only one executor and they cannot serve (due to inability, disinterest or their own death), your beneficiaries may wait a very long time for the court to appoint another executor. If you name too many people to serve at one time you risk them disagreeing with one another or not coordinating effectively.
Name responsible, reliable individuals as executors. Naming at least one or two younger people to succeed your initial choice should ensure your estate is successfully brought to closure without excessive court intervention.
Want to know more about the responsibilities of the Executor? Check our article Choosing Your Executor Requires Careful Consideration.
6. Incorrect Will Execution
Wills require your signature (or someone signing for you at your explicit direction and in your presence) at the end of the will in front of two disinterested witnesses. The witnesses cannot be beneficiaries of your estate. And they may need to sign an affidavit in front of a notary.
Failing any of these steps may cause your will to be invalidated. The sole exception is the notary requirement for the witness affidavit: They may be able to sign the affidavit after you die … but your executor will need to be able to read the witness’s names … and 50% of the time their signatures are illegible, meaning you can’t identify the witnesses.
7. Not Being Able to Locate the Original Will
Finally, you need an original, signed will, particularly if you try to draft your own document. If an attorney drafted the will and it is subsequently lost, the drafting lawyer can sometimes verify a signed copy of the original will in a court during a lost will proceeding. Most states don’t allow these proceedings if no drafting attorney can be found, so when you lose your original will there is no one to question to prove its validity. To be clear: An unsigned copy of a will is 100% useless and won’t be admitted to probate.
For these and other reasons, we highly recommend you ask your financial advisor to review your will. Having another set of eyes never hurts and can be sure to avoid some of these common issues at a critical time.