Last Will & Testament Mistakes

by Heather Frances J.D. Google
A proper will can protect your heirs' legacy upon your death.

A proper will can protect your heirs' legacy upon your death.

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A will is usually the foundation of an estate plan. However, if your will is poorly drafted, improperly executed or out-of-date, it may not provide the protection or direction you want. Drafting and signing formalities vary by jurisdiction, and what is proper in one state might not achieve the same results in another. You can avoid mistakes by consulting an attorney or online legal document provider.

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Formalities

All wills must comply with state laws governing formalities, such as how the will must be signed and who can make a will. For example, most states require you to be at least 18 to make a will, and you must have “testamentary capacity,” which is the mental ability to understand what you are doing by creating the will. If your will doesn’t comply with these formalities, the probate court could declare it invalid, and your property would be distributed according to your state’s laws of intestacy.

Contents

You may name someone in your will to act as the representative for your estate, called the executor. While the probate court actually appoints the executor, it usually appoints the person named in your will. If you don’t name anyone, the probate court will select someone who may not be your preferred choice. Similarly, you can name a guardian for your minor children, and the court likely will appoint that person after your death. If you don’t name a guardian, the court will choose one.

Property Distribution

Many states have specific laws addressing how a will can distribute property of married persons. Spouses cannot attempt to give more than their share of marital property to someone other than their surviving spouse since they can’t give away more than they actually control. An attempt to distribute property improperly can delay the probate process while the issue is resolved. Generally, it’s a good idea to dispose of all property you own rather than leaving certain property out of your will. This avoids having some property distributed in the will while other property is distributed by state law. Often, you can ensure that all your property is distributed by including a residuary clause in your will. The residuary clause covers property not otherwise addressed in your will, often due to unforeseen circumstances.

Keeping It Current

If your will is out-of-date, it may not contain your current wishes. You may wish to periodically review and update your will, especially after major life changes like marriage, divorce, birth of a child or death of someone you named in your will. For example, if you no longer trust the person you originally named as executor, you may want to make a new will to remove that person from the executor role. If you don’t keep your will updated, you may accidentally give property to someone you didn’t intend, or the will may be challenged in court.

Codicils

If you decide to make a small change to your will that does not require a completely new document, you can do this through a codicil. It might invalidate your whole will if you simply cross out something in your will and write in new information. To make a change without rewriting the whole will, you can create a codicil, which is like an amendment to the will. Your codicil must meet the same formalities as your original will, including having proper witnesses and signatures.