In estate planning, one common tactic individuals consider to avoid probate is adding their children…
Estate planning attorneys are often called upon to repair the damage, after homemade wills are found to be invalid.
It sounds like a great idea, kind of like building your own furniture or baking your own bread. But wills and estate plans are governed by state law, and laypeople often run into problems when drafting their own wills, as reported by Kiplinger in “5 Avoidable Mistakes in the Will You Write.” These are the top mistakes made by non-lawyers who try to draft their own wills. Here’s a better idea: have it done by a trusted professional.
- Considering Your Family. A will lets you leave your money to whomever you choose. However, most people don’t know that your nearest family members may be allowed to contest your will in court. They’ll probably lose, but your next of kin have the right to know that you are disinheriting them. They should be placed on notice when you die and your will is submitted to the court for probate. The court will want to know your nearest heirs, particularly if you are estranged from them, since the judge will assume they’re the most likely ones to contest your will. You should include your spouse, children, parents, and siblings who are alive or deceased, so the court knows that these people don’t need to be put on notice, along with the addresses of where your next of kin reside. If a close family member is being disinherited, make sure to spell that out in the will.
- Leaving Money to Minor Beneficiaries. Minors can’t own substantial funds in their own name, and the probate judge will conduct a guardianship or conservatorship proceeding to appoint someone to oversee the funds (at the expense of your estate), until the child reaches 18. The guardian appointment is something you’d have no control over, so let your executor leave bequests made to minors to a Uniform Transfers to Minors Act (UTMA) account. That way the funds will be administered by your choice of custodian until the child is 21. If you are planning on leaving a child a considerable sum, create testamentary trusts in your will. You can instruct how the funds can be used, like “for the beneficiary’s health and education until she reaches 30, at which point all remaining trust funds are to be distributed.” Designate a suitable trustee and stipulate who receives the funds, if something happens to the beneficiary.
- Naming an Inflexible Executor. The executor will oversee your estate’s affairs, so name the most trustworthy and capable person you can think of to serve as the executor of your estate. A common mistake is naming too few or too many executors. If you name only one, and she can’t serve, your beneficiaries may wait a while for the court to appoint another executor. If you name too many people, there could be disagreements and a lack of coordination. Designate responsible and reliable people as executors, and name at least one or two younger people to succeed your initial selection.
- Failure to Launch. If you draft your own will and there’s an issue, your family will only know about it after your death, when nothing can be done to rectify the situation. Sign your will in front of a specific number of witnesses, and you may need them to sign an affidavit in front of a notary. If you mess this up, your will may be invalidated.
- Failing to Locate the Original Will. If you draft your own will, you need an original, signed document. If an attorney drafted the will and it becomes lost, the attorney may be able to verify a signed copy of the original will in a court during a lost will proceeding.
It’s understandable why someone would want to create their own will, but what often happens is they leave behind a will that is either invalid altogether or creates a situation for their heirs that requires the services of an attorney to complete. Better yet: sit down with an experienced attorney and discuss your overall goals to create an estate plan that will work for you and your loved ones.
Reference: Kiplinger (July 2017) “5 Avoidable Mistakes in the Will You Write”