Grave Mistakes
In a pandemic, with the future uncertain and anxiety running high, making a will should be on your mind — yet up to 60% of Americans do not have a will, according to a summary of the situation by LegalZoom. It’s the best way to ensure loved ones inherit what you want them to and give them time to grieve without being burdened by chaos and estate disputes; many call it the last loving act you can perform for family and friends. Creating a will must be done carefully so it is easy to follow and legally valid, allowing for your wishes to be carried out. We can help avoid some common mistakes.
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Believing You Don’t Need a Will
Almost every expert will tell you the top mistake they see people make with wills: Not having one. Even if you don’t think you have enough assets to warrant it, a will can clear up confusion and costs, and make sure small things of sentimental value go where you want. “I am so passionate about estate planning because it really is the last act of love that you can do for your family. It says, ‘I care about you enough not to leave you a mess when I die,'” says Sherri M. Stinson, a lawyer in Palm Harbor, Florida. “Many of my clients think, ‘My kids will take care of it.’ People don’t understand how much chaos failing to have a plan causes and the amount of money it [can waste].”
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Trying to Set Up a Will Yourself
It might be tempting to go online and set up a will through a cheap template, but think twice. “The online services are cheap upfront, and that is by far the biggest appeal,” Stinson says. “But it is really a question of whether you want to pay now or have your heirs pay because you left a mess behind.” An online service doesn’t know the specifics of your situation, and there are many ways forgetting a detail can go wrong. “The problem with online services is that they tend to be very cookie-cutter and often are not state-specific, even though they say they are,” Stinson says. Miss a step and the will is void. “Even if you have minimal assets, failing to meet these requirements results in someone dying as though they had not done the will at all, and often results in [the wrong] people inheriting assets.” The good news: There’s a lot of competition for your business; Stinson knows attorneys who’ll draft a will for less than $200.
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Setting Up Only a Will
A will and advanced health care directive go hand in hand: You want a plan in case you are alive but unable to make your own medical decisions. “An advanced health care directive appoints an agent to legally make health care decisions on your behalf,” says Shawn Breyer, owner of The Hive Law. “The agent will only gain decision-making authority when a physician declares that you are incapacitated, [and] despite any objections that the agent may have, they have to follow the directions.”
Failure to Sign a Will or Have a Witness
Another common problem with online services, or when a person tries to create a will on their own: failure to sign a will or have it properly witnessed following the laws of your state. Stinson tells a cautionary tale in which a loved one was disinherited from a million-dollar estate entirely because the will was not properly signed and witnessed.
Designating the Wrong Executor
It’s vital to take care in naming an executor, the person you trust to follow your wishes explicitly in carrying out a will. Some duties of an executor include hiring an attorney, representing your will in probate, filing taxes on the estate, and distributing assets as you specify. Sometimes, Stinson warns, “either people do not choose someone who can and will execute when decisions need to be made, or they choose a person who is untrustworthy. I have had the experience of a client executing a health care surrogate only to have the person they named refuse to follow the instructions.” In that case, the person laid in the hospital bed for days and suffered needlessly until they died, Stinson says — and your estate and heirs could be in jeopardy the same way. If you don’t have someone you trust to act as executor, hire a lawyer paid out of your estate.
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Avoiding an Alternative Executor
People often question having an alternate executor, but what if your first choice is not able to do the job? What happens if your executor dies before you? “It is always a good idea to have an alternative executor when possible, just in case your first choice can’t or doesn’t want to take on the responsibility,” says Karen Bussen, founder and chief executive at Farewelling. Your executor also has the right to refuse the role — so have a backup.
Failing to Communicate Your Will
Telling someone about your will can be awkward, but it needs to happen. First, talk to your future executor and make sure they are comfortable with the responsibilities. They should also know where your will and other documents are kept — if no one can find your will, it may as well not exist, Bussen says. Talk also with those you’re leaving assets to. It reduces stress and arguments if everyone knows what they are getting, and it leaves time to rearrange your plans if your bequest doesn’t benefit your heirs. If you leave assets to someone getting government assistance such as Medicaid, a bequest could cause problems.
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Forgetting About Your Will
Review your will from time to time to make sure it reflects your current situation. “Note that you shouldn’t physically alter a will — our legal experts have said that removing staples or pages can make a will invalid,” Bussen warns. But stay on top of changes from having another child or getting a divorce to no longer keeping in touch with your executor.
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Assigning Too Much to Your Kids Too Soon
Parents usually want their kids to inherit their assets, but handing over a large lump sum of money could backfire if they’re on the younger side. Instead, parents with kids under 18 can set up what is called trust provisions, putting assets into a trust with advisers until they reach a certain age. Parents can also set up a schedule to distribute the trust at certain age milestones, such as a small sum at 18, more at 21, and a final sum at 24.
Not Funding a Trust
Setting up a trust within a will is a good option, whether for younger children or to fund services for a loved one with special needs. But the trust really needs to be funded — you need to transfer assets into it. “The whole purpose of creating a trust is to avoid probate. If you don’t transfer assets into the trust, then your heirs have to deal with probate,” Stinson says.
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Failing to Fund a Charity Bequest
Wills also sometimes name a charity for a bequest without having money in the estate to cover the gift. That risks having money taken from heirs’ portion to cover the gift. “Heirs are very upset at this one,” says Amy Rose Herrick, owner of The Secret Profits. “This could easily be avoided by naming the charity as a beneficiary for a percentage of assets in perhaps life insurance or retirement accounts.”
Not Including the Personal Stuff
People generally think of a will as dealing with money, but often what beneficiaries want most are things with sentimental value, which can be fought over the most. Include them in your will if only to eliminate arguments. “This is a wonderfully personal way to share important sentimental things with your near and dear. If it’s a special book, artwork you created or treasured, letters, family recipes, something that belonged to an ancestor, or another artifact from your life, bequeathing a sentimental object is a lovely way to help a loved one remember you through that object,” Bussen says. “If you do include sentimental objects in your will, you might want to add a note about why it was special to you.” Write up a list as specific as possible and include it as a memorandum to a will.
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You’re Too Specific or Aren’t Specific Enough
There’s a fine line between being too specific and not specific enough in a will. “In general, and especially if there are any sensitive assets or there may be tension in the family, it can be good to be more specific. Because after all, vagueness can breed confusion and conflict. Don’t let the idea of having to be too specific stop you from making a will,” Bussen says. You don’t want to go as far as to say you won’t bequeath a specific asset to an heir if they drink alcohol, which could be difficult for an executor to enforce. (And who’s to stop them from going out for a drink the day after they inherit?) But don’t be too vague in bequeathing a diamond ring to your oldest daughter without saying which of three rings you mean. She could end up with the smallest, while great aunt Kathy — whom you don’t keep in touch with — walks away with the biggest. Pictures and a list can go a long way in remedying this situation.
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Disregarding Beneficiaries
Designated beneficiaries on financial accounts and life insurance policies will always trump what is written in a will. Before you include those values in your will for heirs, be sure they aren’t already assigned to someone else directly through the accounts. For example, if you have assigned accounts to a husband but get divorced, then assign them to your kids in a will, your accounts still list your ex-husband — and he will be the beneficiary before the kids.
Including Life Insurance in the Will
If you fund a will with a life insurance policy, you are making a mistake Herrick sees often. While in theory this sounds okay, once life insurance money is in a will it’s subject to creditor claims, attorney fees, and all other estate settlement costs before heirs get anything. Keep the two separate; designating heirs as beneficiaries directly from life insurance is a much better idea and an easy way to ensure they get their full inheritance. “Insurance is paid directly to heirs usually within 30 to 60 days in full upon receipt of a death certificate, tax free. All money goes where desired, bypassing probate, creditors, and attorney fees,” Herrick says.
Including Burial Wishes in a Will
Burial wishes have no place in a will, yet many people mistakenly include them. The problem: If you include burial wishes in a will, there’s a good chance the will won’t get read until several weeks after you die, when it will be too late to follow your wishes. “We’ve heard many times of a family making decisions before the will is read, only to find out that the person wanted something entirely different,” Bussen says. “We suggest you keep a copy of any funeral plans with your will — but as a separate document — and then also just keep one extra copy somewhere in your home or with a loved one so that they have it should the time come.”
Leaving Out Digital Information
It’s 2021, and that means thinking about what will happen once you’re gone to social media accounts, digital photo accounts, or even more valuable assets such as bitcoins or other investments. Your loved ones won’t have access unless you provide it via legitimate digital estate planning. “It is all too common for family members to be locked out of a social media account when a person unexpectedly dies,” says David Reischer, an estate planning attorney. Of course, you can give a trusted person your account name and passwords, but passwords change. It’s best to include this planning with your will. “Technology can make it burdensome or impossible to transfer assets that are encrypted or password protected or difficult to even locate by virtue of being an intangible asset … Fiduciaries with the knowledge and authority to access, control, or even in some cases, copy digital assets can assist heirs with transfer of digital assets when a person dies.”
Not Including Pets in the Will
Don’t forget about Fido. You will want to formally assign someone to take in your beloved pet, though it is recommended that you communicate this before writing it into a will in case there are objections. You can even leave a portion of the estate to help fund your pet’s care. If you don’t have someone to take in a pet when you die, you can make arrangements with an animal sanctuary or no-kill shelter — although this is usually in exchange for a donation from your estate that will need to be included in your will.
