Common Errors To Avoid When Writing Your Will

Posted on Thursday, January 19th, 2012 at 2:08 pm and filed under Advance Directives

You cannot take it with you, but with careful planning you can make sure the assets you worked hard for will benefit the ones you love after you are gone. Many of us, however, put off creating a last will and testament, for one reason or another. In fact, 58 percent of American adults have not written a will, according to a 2008 survey conducted by FindLaw.com. 

Of all the problems associated with wills, the failure to write one is probably the greatest. Dying without a will leaves the distribution of your property up to your state’s inheritance laws—which likely differs from your idea of how things should be handled.

Among other common will-related problems to avoid:

• Failing to update your will to reflect changes in your life. It is great you took the important step of writing a will. But if you have neglected to revise it after the birth of a child or marriage to a new spouse, the will may no longer be effective.  You should also have a lawyer review your will when estate and tax laws change.

• Not putting a “superlative clause” at the end of your will to indicate that this most recent version of your will supersedes all previous wills you have drafted. Without this clause, earlier versions could be brought forward in a challenge to your last will.

• Forgetting or not taking into account other documents you have that could conflict with or supersede the wishes you express in your will. Examples of such documents include life insurance policies in which you designate a beneficiary or a 401(k) retirement account, which automatically goes to the surviving spouse unless the spouse signs a notarized form to waive rights and name another beneficiary. Jointly-held property or accounts also go directly to the surviving owner.

• Entering joint property ownership, which can make the provisions of your will ineffective. When you grant a child joint ownership of property, for instance, full ownership passes to the survivor and cannot be passed on to others through the will.

• Not telling family members where to find your will and other important documents and assets. Even if you do not want family members to know the details of your will in advance, they need to know where to find it. Record and leave all relevant information in an accessible location.

• Choosing an inappropriate executor, such as someone who does not have the time to give to the often long and drawn-out process of estate administration or someone who has a conflict of interest.

• Writing the will in language that is difficult to understand and easy to misinterpret. Write in plain, simple language—not legalese.

• Being too specific, listing every item you own and who gets it. Options are giving things that have special meaning to loved ones while you are still alive, or grouping valuable items such as jewelry, collectibles or tools to specific loved ones.

• Forgetting to include a “leftovers” clause. Such a clause—more formally referred to as a residuary clause—directs distribution of any part of your estate that is left over after all assets specifically mentioned are distributed.  For instance, funds could be left over when a named beneficiary is deceased. If your will does not have a leftovers clause, your state’s laws will direct how remaining assets will be distributed.

This article is not intended to provide legal advice but to discuss the topic of wills generally.  For more information, visit the American Bar Association’s page http://www.americanbar.org/aba.html and/or consult your own attorney.

When Writing a Will…Consult An Attorney

When planning your estate it is best to choose the counsel of a lawyer—rather than do-it-yourself software and kits—to help guide you through the complexities of property and tax laws, wills, trusts and probate.  You are much more likely to meet all of your objectives with the help of a lawyer.

If you are concerned about saving time and money in your estate planning, the American Bar Association (ABA) (see link above) recommends that you organize all pertinent information and documents before meeting with the lawyer. This includes information on assets, liabilities and title arrangements and copies of important documents such as previous wills or trusts, powers-of-attorney, life insurance policies, employment benefits, and prenuptial agreements or divorce decrees.

The ABA advises that since not all states have programs that require or allow attorneys to designate a specialty area of practice, you should carefully look into the level of experience and qualifications a lawyer has in estate planning and seek recommendations from friends or other professional advisors. Membership in certain estate planning organizations often indicates a lawyer’s dedication to keeping up-to-date in the specialty.

Make sure the lawyer addresses legal fees to your satisfaction in an engagement letter before proceeding.