For many people, writing a will is an emotional task, one that they just want to get done as quickly as possible so they can get back to the important business of living. Determining who should receive your assets after your death is just as important though, but all too often, people make mistakes that invalidate some or all of the document.
As you sit down to determine “who gets what,” make sure that you avoid these common mistakes to ensure that your wishes are carried out.
1. Handwriting or Videotaping the Will
Writing “I leave everything to my wife” on a sheet of paper might make for good drama, but there is little chance that such a document will hold up in court if there are questions disputes about an estate. Only a few states allow individuals to write out their wills by hand or make videotaped recordings of their wishes. Instead, people should use a simple online service to create their legally-binding wills or meet with their attorney instead, to ensure that the court will recognize the will.
2. Failing to Designate an Appropriate Executor
When you select an executor for your estate, choose someone who is up to the task. Choosing the wrong person may not invalidate the will entirely, but it could lead to errors or misappropriation of your assets. It’s also important to designate an alternate or backup executor. This person will take on the task should the first executor be unable or unwilling to manage the estate — or if he or she dies before you. When there isn’t a named executor on the will, your family can petition the court for a particular person to be named, but that will only delay the process of your estate distribution, and the court-designated executor may not be the person you wanted.
3. Errors With Signing
In order for your will to hold up after your death, it must be signed in the presence of witnesses. Depending on where you live, there may be rules about who those witnesses can be, their age, and whether or not the will must be notarized. For example, one common rule is that the witnesses cannot be anyone who is named as a beneficiary in the will. Failing to follow these rules can invalidate the document and create problems with the distribution of your estate, so learn the rules and adhere to them.
4. Creating Conflicts With Beneficiary Designations
When you open retirement accounts or take out insurance policies, you’re required to designate a beneficiary, the entity that will receive the asset when you die. These beneficiary designations override anything that’s included in wills. For that reason, it is important that you keep your beneficiary designations current and that they match the information in your will. Otherwise, you could inadvertently leave your retirement plan to a former spouse, much to the chagrin of your current spouse.
5. Handling Joint Property Incorrectly
If you own property with someone else, whether a home, a business, or even a bank account, the law states that in the event of your death, that property belongs to the joint owner — regardless of what the deceased’s will might state. For example, if you and your spouse jointly own a home, you cannot pass that property on to your children. Your spouse becomes the owner until he or she dies, and the provisions of his or her directives will take precedence. This often comes into play in blended family situations; for example, when one spouse wants the family home to go to his or her children, not stepchildren. Understanding the rules regarding joint property is vital, so it’s important to work with an attorney to determine the best course of action to ensure that your assets are distributed appropriately.
6. Making Changes Incorrectly
When you write your will and sign it, it’s not set in stone until the day you die. You can make changes; after all, if you create your will in your 30s, it’s likely that your assets and even beneficiaries will have changed 40 or 50 years later. However, changing your will isn’t a matter of adding an addendum or just crossing out lines that you need to change. Changes need to be made within the scope of the law and signed appropriately in order for them to be considered valid. Otherwise, the court will distribute your assets as you originally determined, regardless of the changes.
Before you create your will, learn your state laws and review all of the rules regarding your specific property. You’ll save your heirs time, and help avoid costly court battles or misdirected assets.
Updated: July 22, 2015