10 (More) Common Mistakes in Will Drafting

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Whether you make your will yourself, with the help of an online will maker, or under the supervision of an estate planning attorney, be aware of these 10 (More) Common Mistakes in Will Drafting to ensure that your estate plan is as effective as possible. And if you haven’t checked out the first list, skim through our 10 Common Mistakes in Will Drafting.

  1. Forgetting to destroy your old will
  2. Failing to designate beneficiaries on operation of law assets
  3. Not including preferences for your disposition of remains outside of your will
  4. Providing inadequate funds for post-mortem expenses
  5. Allowing witnesses to print in sloppy handwriting
  6. Creating a pour over will when expecting will contests
  7. Not signing an affidavit at or soon after the original will signing
  8. Failing to get a doctor's note for a willmaker with questionable mental capacity
  9. Keeping your will locked in a safe or safe deposit box
  10. Leaving your pets out of your will or other estate plan documents

#1 Forgetting to destroy your old will

Any well drafted last will has that magic line that goes something like, “This is my last will and testament. I hereby revoke all previously executed wills and codicils made by me.” Although this one-liner is meant to invalidate all your prior executed wills, you should nonetheless also physically destroy the original and copies of prior executed wills.

Especially if your new will contemplates vastly different distributions than the old one, destroying prior copies – in addition to the magic one-liner in your new will – is helpful to reduce the likelihood that a begrudged beneficiary from the old will launches a contest challenging the new one. Such contests cost your estate extra time and money, leaving your beneficiaries with less.

#2 Failing to designate beneficiaries on operation of law assets

Operation of law assets like investment accounts, 401(k) or IRA accounts, and life insurance policies offer a beautiful way to efficiently and effectively transfer assets on death outside of the probate process.

Indeed, one of the reasons revocable living trusts are so popular is that they can turn a probate asset into an operation of law asset, thereby bypassing the expense, time, and publicity of probate.

If you die without designating beneficiaries on an operation of law asset, you lose that efficiency. What would have been an operation of law asset becomes a probate asset, and we need to rely on your last will to figure out who the beneficiaries should be.

#3 Not including preferences for your disposition of remains outside of your will

You die. Everyone’s sad. For whatever reason, you didn’t share a copy of your will with your executor, and in the few days after your death, your loved ones haven’t had the chance or the heart to rummage through your desk drawer to find it sitting at the bottom of a stack of papers.

Your family couldn’t simply let your body sit around, and so they did what your mother wanted. They buried you.

Flash-forward a week and a half later, and after an exhausting search, your brother finds your will. He triumphantly hands it to your mother, who reads in horror that you didn’t want to be buried. You wanted your body cremated.

Your mother doesn’t know whether to cry or to dig up your grave in the night, cremate your body, and fulfill your wishes retroactively. So she does both.

This entire series of unfortunate events could have easily been avoided had you shared your disposition of remains with someone in advance or outside of your will in an easy to find location.

#4 Not providing or providing inadequate funds for post-mortem expenses

Your expenses and upkeep on your assets don’t simply stop the moment you die. Consider all the following:

  • The average cost of a funeral ranges from about $8,000 - $12,000, depending on where you live. Cremation averages between $4,000 - $7,500
  • Probate court filing fees to begin probate of a last will can range anywhere from $50 to $1200
  • If an attorney is assisting with your estate administration, the attorney may require a retainer before commencing work
  • Real estate taxes or property insurance need to be paid
  • Utilities likely continue to need to be paid, particularly if you live in a cold weather state and die early or in the middle of winter

As part of your executor’s (also called a personal representative) responsibilities, your executor can coordinate payment or pay directly for these expenses. These out-of-pocket expenses incurred by your executor as part of his or her duties are ultimately reimbursable by your estate. Depending on your executor’s financial situation, however, waiting to be reimbursed may not be feasible.

By creating a transfer-on-death bank account with adequate funding for anticipated post-mortem expenses, you can easily advance money to your executor or another trusted individual to help pay these expenses.

#5 Allowing witnesses to print in sloppy handwriting

Except under very limited circumstances, every state requires a will to be witnessed in order to be ruled valid.

If your will is challenged or not made self-proved through a self-proving affidavit, your executor or estate planning attorney may need to contact the witnesses to secure their attestation or appearance in Court. If your executor can't read their name and address because your witnesses’ handwriting is poor, that's a problem!

Instruct your witnesses to print their name and address legibly and carefully, or do it for them and have them just sign their name.

#6 Creating a pour over will when expecting will contests

A Pour Over Will is the standard type of will that pairs with a revocable living trust instrument. The pour over will “pours over” or funds untitled assets into a trust for distribution under the trust provisions. This relationship is often helpful in the event that you weren’t able to fund certain assets into the trust during your lifetime.

Similar to a last will, a pour over will must pass through the probate process, creating a public record. Therefore, if you are anticipating a contested proceeding, the ordinary playbook of creating a pour over will with your revocable living trust may not be ideal, since the person contesting the will may become aware of the trust’s existence (if they didn’t know already).

Provided that you’ve already funded or will fund the revocable living trust during your life, you might instead create a ‘regular’ last will and testament with testamentary trusts. You can mirror or create different distributions from those in the revocable living trust. The key is that the revocable living trust stays quiet or hidden.

#7 Not signing an affidavit at or soon after the original will signing

Completing a self-proving affidavit as part of your signing ceremony or shortly thereafter is a proactive way to strengthen your last will.

By properly completing the self-proving affidavit with the help of a notary public licensed in your state, you are making your will “proved.” The court accepts the written statement and seal of the notary public as proof that he or she, acting as an agent of the state, validated that your will’s execution met the state’s requirements. The will can be admitted to the Court without any further testimony from the signing ceremony witnesses.

#8 Failing to get a doctor’s note for people with questionable mental capacity

If you or someone you love needs to make a last will and has questionable mental capacity, do whatever you can to obtain a doctor’s note attesting to the physical and mental capacity of the Willmaker as close to the date of execution of the will as possible.

Every state requires that Willmakers are ‘of sound mind’ in order for a will to be considered legally valid. When capacity is at question, states look to doctors to provide their medical opinion on whether the person is capable of understanding and making their own decisions.

In addition to the doctor’s note, you may also wish to capture an audio recording of the signing and the Willmaker discussing his or her will. While you may be tempted to do a video recording, be cautious about doing so unless you are certain the video is more convincing than the audio alone in demonstrating that the Willmaker has mental capacity.

#9 Keeping your will locked in a safe or safe deposit box

A lost will or will that cannot be found is no better than no will. Storing your will in a safe or safe deposit box that only you can access or where only you know its location is not helpful.

#10 Leaving your pets out of your will or other estate plan documents

92% of American pet-owning households do not have an estate plan that contains provisions specifically concerning their pets. Many of these unprotected households are, wittingly or unwittingly, placing their bet on another family member or close friend jumping in to take over the responsibility, should the need arise. While that strategy works in some cases, responsible pet owners can do better to avoid the dangers of informal pet care arrangements.

A Pet Protection Plan offers a superior approach. It is a legally enforceable document through which you can designate who should look after your pet in the event of an emergency and detail proper care instructions. Moreover, a properly drafted Pet Protection Plan can deliver virtually all the benefits of a pet trust without the assistance and cost of hiring an attorney.

For responsible pet owners, there’s no better way to keep your pet safe than with a Pet Protection Plan. And with Just In Case Estates, you can create yours today for free.


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