For most people, a Last Will and Testament serve as the foundation upon which their comprehensive estate plan is built. Giving the importance of your Will, it should be error-free, particularly in light of the fact that any errors or problems with your Will won’t be uncovered until after you are gone, meaning it will be too late for you to fix errors or explain ambiguities. With that in mind, it may help to learn more about some of the most common mistakes people make when creating a Will so that you can try and avoid making them yourself.
Mistakes to Avoid When Creating a Will
- Waiting too long. Over half of all Americans have yet to execute a Last Will and Testament despite acknowledging the importance of a Will. Often, the explanation for this seeming discrepancy is the belief that a Will is not needed until you have amassed a large enough estate and/or started a family. In reality, every adult should have a Will. There is simply no good reason to wait.
- Going the DIY route. In today’s electronic age, it is tempting to turn to the internet for everything, including legal forms. It may seem as though you are saving both time and money using a DIY Will form that you find online. In reality, you are more likely to cost your loved ones considerably more time and money than you save when it comes time to probate that Will. DIY Wills are notorious for failing to completely distribute an estate, being outdated and lacking state-specific laws, and failing to interact properly with other estate planning documents.
- Appointing the wrong Executor. When you create your Will, one important decision you will need to make is who to appoint as the Executor. Your Executor oversees the probate of your estate. All too often people simply fill in the name of a spouse, parent, or adult child without giving any real consideration to whether that person is best qualified to be the Executor. Don’t just list your children according to age. Give some thought to who you trust to handle your finances when you are gone.
- Failing to nominate a Guardian. People associate creating a Will with ensuring that their estate is distributed according to their wishes. While that is certainly one important function of your Will, it is not the only important reason to create a Will. If you have minor children, your Will provides you with the only official opportunity you will have to nominate someone as Guardian of your children if one is ever needed. Do not overlook this important opportunity when you create your Will.
- Improper execution. Every state has very specific requirements with regard to how a Will must be executed or signed. Some states require the Testator to sign in front of one, two, or even three witnesses; while other states may require a notary to witnesses the execution. A common mistake is to overlook the importance of proper execution. Another problem is that some states do not allow for interested witnesses – persons who stand to benefit from distributions from the Will. If you don’t know the rules for your state, look them up or seek the help of an estate planning attorney. And always use independent witnesses who are not named as beneficiaries under the Will. If you fail to execute your Will properly, according to the laws of the state where the Will is executed, that failure could become the basis for the Will being declared invalid by the Probate Court or a Will contest after you are gone.
- Failing to update. Creating your Will is only the first step in ensuring that your assets are distributed as you wish following your death. You must also review and revise your Will on a routine basis as well as when certain life events require an immediate update. For example, if you get divorced, your Executor passes away, or you become a parent for the first time, you should review your Will and make any necessary changes as soon as possible.
- Failing to consult with an estate planning attorney. As discussed, using a DIY Last Will and Testament is never a good idea for several reasons. Failing to consult with an experienced estate planning attorney before creating a Will is equally risky. There is simply no equivalent to competent, experienced, and knowledgeable legal advice.
Contact Southern California’s Premier Estate Planning Law Firm
If you have additional questions or concerns regarding mistakes to avoid when creating a Will in Sothern California, contact the experienced and trusted estate planning lawyers at Sandoval Legacy Group, A division of Holstrom Block & Parke, APLC by calling (951) 787–7711 to schedule an appointment. No other law firm in Southern California has the knowledge and experience relating to estate planning, special needs planning, probate, conservatorships, business succession planning, tax planning, and trust administration as our lawyers and paralegal staff.
Have a question? Ask Dennis.
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