Estate Lawyers Share the Biggest Mistakes People Make in Their Wills

According to a recent article by Alexander Clark in “Wealth Advisor,” most estate attorneys indicate that common mistakes associated with wills are very basic and avoidable.  The biggest errors show up again and again: putting off a will, who you appoint, how clearly you write the will, and whether you ever bother to update what you signed.  The pattern is stark. People either do nothing at all, or they sign a will once and then let it gather dust while their lives, assets and relationships change around it.

Here is more information from the professionals regarding these big mistakes:

Putting off a will (procrastination):  Potentially the most damaging and costly mistake is simply not making a will. By the time a crisis hits, capacity or family consensus may already be gone.  Probate fees are expensive and when someone dies without a will, state intestacy rules decide who gets what, which can sideline unmarried partners, stepchildren or charities entirely.

Signing badly:  Even when people do sit down to sign a will, they often trip over formalities. Litigation records show that one of the most common technical missteps is not signing properly. If witnesses are relatives who inherit, or if signatures are missing or out of order, a court can treat the document as invalid, effectively putting the estate back into intestacy despite the effort to plan.

Letting documents and beneficiaries go stale:  And don’t just sign and forget.  Estate planning documents created decades ago may no longer align with current goals and failing to keep your will up to date after life events like marriage, divorce, becoming widowed or other deaths can delay distributions and/or send assets to people you no longer intend to benefit.

Note:  The same problem can show up in beneficiary designation forms that control the distribution of assets like IRA’s and life insurance.  Out of date forms can send money to an ex-spouse or omit a later child.

Choosing the wrong people to be in charge:  Who you appoint to carry out your wishes can matter as much as what the will says. Problems can and do arise when people name guardians, executors or trustees without thinking through the workload or potential conflicts.  This can include not understanding the role, feeling blindsided/overburdened, not taking thorough inventory, missing court deadlines (exposing the appointee to personal liability), failing to notify beneficiaries, inaccurate distributions, etc.  It is also best to avoid naming co-executors that are then forced to agree on every decision.  

DIY shortcuts, vague language and forgotten assets:  Cheap templates and handwritten notes are another common issue.  Ambiguities and errors in DIY wills foster family conflict.  Failing to keep language precise can leave room for competing interpretations, especially around personal items that may have sentimental value.  Even when the wording is clear, people routinely forget entire categories of property such as small businesses and digital assets (like photos, cryptocurrency and even domain names that can have real value).

Overlooking the rest of estate planning:  Don’t focus so narrowly on the will that you ignore the rest of the estate plan.  Avoid confusion by coordinating all estate planning documents (the will, any trust documents, beneficiary forms, power of attorney and health directives indicate your wishes).  Also, understand how your assets are titled and how that fits into the “plan.”

Overlooking taxes, fairness and the rest of the plan:  Fairness is another trap.  Trying to treat everyone “equally” can be just as problematic as treating them differently if one child has already received large lifetime gifts or another has special needs.  And keep in mind that not all assets are equal when considering tax consequences.

In summary, the professionals agree that a little attention can help avoid these common big mistakes.  If you name the right people, keep your documents current, avoid DIY ambiguity and coordinate your will with the rest of your financial life, you dramatically reduce the odds that your legacy will be decided in a courtroom.