Having a will is an essential part of estate planning, as wills govern the allocation of your assets and determine who gets what after you pass on. Despite the importance of a will, too many individuals overlook the importance of following the correct steps to ensure that their will is valid and upheld after death. While it is recommended to seek professional help from a lawyer in drafting a will, many choose to write their own wills to have something on paper “in case something happens.” It is crucial to know the major mistakes that people make to avoid any will challenges or disputes. Here are five common mistakes that are made too often in will drafting and how you can avoid them:
1. Not Having One to Begin With
This mistake is perhaps the most obvious and common mistake people make: too many people die without wills or any written testament of what they hope will happen to their property and assets upon death, thus leaving the question open for debate. Writing a will is crucial if you possess any assets that will remain after your death and writing one doesn’t even depend on if you have living family members to gift the assets or possessions. Of course, you can allocate your assets to family members, friends, and even charitable organizations. Still, none of this can be done without a written will or testament to dictate where your assets are to go upon your passing. No one wants to think about death, but it is important to plan to avoid confusion and fighting among the living over who gets what.
2. Getting the Wrong Witnesses
Most states require witnesses to validate a will. However, a common mistake that people make is that they think they are adamant and get the witnesses, but one or both happen to be interested witnesses. An interested witness is an individual who has some stake in the inheritance listed in the will. Signing witnesses must be “uninterested.” An interested witness’s signature does not entirely invalidate the testator’s Will. However, it does affect the gift received by the interested witness. The court will presume that the gift specified in the testator’s Will was given under duress, fraud, or undue influence. The interested witness can challenge this presumption by providing sufficient evidence that this presumption of wrongdoing is not warranted. If they can prove no wrongdoing, the interested witness will receive the gift specified in the testator’s Will. Suppose the interested witness fails to rebut the presumption. In that case, the interested witness will receive only so much of the gift specified in the Will as it does not exceed what the interested witness would receive if the testator did not have a will (aka if they died intestate). Having interested witnesses just makes things more complicated: select your witnesses wisely and choose those who have no part in the will to avoid unnecessary complications.
3. You “Miss a Spot”
Many wills address the “big stuff” but fail to dispose of all property by excluding a “residuary provision.” This provision is important because it picks up assets that the testator may have overlooked and were not explicitly listed in the will.
4. Not Paying Attention to Your State’s Requirements
While there are some common requirements across-the-board for wills, each state has its own requirements and preferred language and formalities that should be used in a will. Therefore, it is important to pay close attention and learn if your state has any unique requirements or formalities that must be followed to ensure that your will is properly written and executed. Likewise, some states are stricter in enforcing formalities than others. For example, New York is a “strict formalities” state: one small mistake, such as a missed signature, could invalidate a will. Another example for New York is to be sure to have a will notarized so it may be a “self-proving” document and make the Probate or Surrogates Court less cumbersome. Know your state’s laws and draft accordingly.
5. Failing to Be Specific
If you have specific items that you want to go to certain people (aka you want your teal-colored Tiffany necklace to go to your aunt Nancy), write that in the will. If your assets are not being divided evenly and you have specific amounts or allocations in mind, explaining the reason for the unique and uneven distribution may help prevent family conflicts once you are gone. Additionally, suppose there is a person that you are choosing the leave out of the will for some reason or another that would typically be a person assumed to be included. In that case, experts say that explaining your reason for the exclusion can be beneficial, or it may be best to bequest a small nominal gift.
Be sure you know what will happen to your assets when you are no longer around to possess them yourself. If you have any questions about will drafting or need assistance in starting a will, contact Laizure Metz Legal Services at Christopher@laizuremetzlegal.com or (347)625-7854.