The Biggest Mistakes People Make in Their Wills, According to Estate Lawyers

Your last will and testament is one of the most important legal documents you will create. It allows you to dictate where you want your assets, guardianship, and debts to go after you die, and allows you to appoint an executor to carry out your wishes.

But many Americans don’t have a will right now. Despite the pandemic, two in three adults do not have a will, according to a Caring.com survey of 2,500 Americans in 2020. Procrastination and the belief that they don’t have enough assets to leave someone are the top reasons people don’t make it.

Edo Walney, founder of Walney Legal Group, an estate planning and asset protection law firm based in Milwaukee, said lack of a will is a common sad mistake he sees clients make.

“The fact of the matter is, almost everyone over the age of 18 requires certain estate planning documents,” he said. “It may not be anything fancy, but having that documented can put a lot of financial and emotional pain on your family at a time that’s already trying.”

Beyond not making a will, here are some of the biggest mistakes estate planning attorney clients make. Some of the answers were edited for clarity and length.

“You should definitely have just one” [executor], One is the best and then there are alternate executors. Too many testators think, objectively, they want all of their children to be responsible for administering the estate, and that’s a really bad idea. Lots of arguments. You have to agree with everyone on something.

“If you have a house and you want to sell an estate property, of course some kids will be like, ‘No, this should stay in the family. I don’t want to sell. How much should I sell it for?’ Should you prepare the house before selling it? Small disagreements that inevitably turn into family fights and there are going to be two sides and two factions. Not everyone gets along and all those things come to the fore.

“I had a family that had seven” [children who were] co-executor. It was a disaster. Because of the conflict of interest everyone should get their own lawyer at that time. They did not want to do so as it is seven times the legal fee. Can you imagine seven lawyers trying to communicate one thing? It gets very expensive.

“To avoid that cost, I signed a waiver from everyone. I made them aware that there might be a conflict of interest later that we don’t expect right now. Let’s say one person wants to buy a house, or one person all works, others do nothing and everyone gets commission. It’s a sad place. Things that happen during his administration [loved one’s] Assets are things that happen throughout their lifetime that are repeating themselves.” – Alice Choi, estate planning attorney at Novick & Associates in New York City and Huntington, New York

I[The issue that comes up with too many executors,] If you have two, and they don’t agree, who gets the final decision? If you’re going to choose more than one, make it an odd number so it’s a majority-rule. Some people are like, ‘I want all my kids,’ and they have four kids. Then it can be two against two, and then what happens?

“Although the will says what needs to be done – it’s instructions – it doesn’t guarantee that everything is going to run as smoothly as we would expect.” , carmen rosasoAn estate planning attorney based in San Mateo, California

the belief that a will alone will survive the probate process [is the biggest mistake], Probate is the legal process of administering a person’s estate after they die intestate, [meaning] without a will, and when they die with one, [which is known as] To prove the will Although a valid will may ultimately dictate where assets are allocated, it is unlikely to survive the probate process if only you have assets in your name.

“If you have a will, but an account (bank account, investment account, etc.) that does not have a beneficiary designation, that is, it is entirely in your name, the estate must go through the probate process. before being distributed accordingly.

“I recently had a client come to me with her father’s will that directed her property to be distributed equally among her three children. He believed the administration would be relatively straightforward.

“However, her father’s title of residence was entirely in his name—not in a trust and did not have the Transfer on Death designation, which some states allow—hence the probate to transfer the title of residence to the beneficiaries. Had to be opened.. In Wisconsin, designating a TOD beneficiary on a deed is about $30, but with probate, the cost for the client to go through probate was about $4,000. David Watson, an estate planning attorney based in Macon, Wisconsin

“Sometimes people are like, ‘To all my kids, an equal share.’ But it is not necessary that children have the option to say, ‘I want to buy this property’ or ‘I want this specific item.’

“They’re like, ‘My kids will figure things out, they’ll all get along.’ When people leave, relationships change. Money can change people. Your kids who got along so well while you were alive may not get along and decide not to. To decide who is right, who is wrong or be the mediator between them all.

“If you’re too general, it’ll be based on interpretation, and if people interpret it differently, you’re in trouble. I will give an example. My grandmother had this beautiful painting and when she passed away, I was like ‘Oh my god, I love this painting.’ We didn’t fight over it, but my aunt was like, ‘I really want it’ and then one of my cousins ​​wanted it. I jokingly told my aunt, ‘Okay, when you die, keep it in your will that I get this painting.’ Luckily we were able to hash it out. With my aunt next in line, she got past the grandchildren.

“If there’s something that has a lot of emotional value, people fight the most. They’ll say it’s money, but it’s actually more sentimental things. People are processing their emotions out of those sentimental things. If they have to. Regret not spending much time with someone, they want all the things, or every single memory or picture they can lay their hands on.

“If you know someone wants something, put it down. It’ll make it that much easier.” – Rose

“The biggest mistake people make when it comes to making a will or estate planning is their failure to update those documents. There are some incidents in life that require the documents to be updated, such as marriage, divorce. , the birth of children. It is generally recommended that your estate plan be revisited every five to seven years.

“For a lot of people, once it’s done, they don’t think about it. When you make a will, take the time to update it because there are certain life events that can affect your entire estate plans. can change.

“Let’s say you name your children, and one of your children passes away, but the way you made your will didn’t account for your grandchildren. So, in short, your grandchildren Wasn’t included in the will because his parents passed away, and that was not your intention.” Diona Reynolds, an estate planning attorney based in Orland Park, Illinois

“The biggest mistake people make in completing their will or estate planning is simply doing nothing and having no documents. For those who have documents, the next biggest mistake people make is letting documents go stale.

“The next big mistake we see people make is not to carefully consider the consequences of the bequests they make. Yes, leaving people money is a powerful thing. But sometimes those same bequests are gifts.” This can create a lot of problems for the person doing it. While leaving money for children, some consideration should be given to the child’s maturity and place in life. An 18-year-old may be legally an adult, but he may be able to inherit For is not in a good place in life, even for a relatively modest person.

“Additionally, receiving gifts may disqualify a college-aged person from financial aid. For those beneficiaries in their mid-life, at risk of divorce, creditors or convictions such as substance abuse or gambling addiction.” There is some consideration to be made. In each of those cases, an inheritance you give to benefit a friend or family member may fall into someone else’s hands and not help your loved one at all — and Maybe even hurt them.

“For older beneficiaries, consideration should be given to whether that person may be in a good mental state to receive the gift and whether that person may be disqualified from Medicaid Title XIX assistance as a result of the inheritance.” , Edo Walney, founder of Walney Legal Group, an estate planning and asset protection law firm based in Milwaukee

“I had a client who came in and they were like, ‘We have drafts that they made it, but we don’t have proof or evidence to show that they actually signed the documents. If you are very clear, if you are very specific, people know where to find your important documents. It makes it easy for your loved ones.

“I’m in a forum where there are estate planning attorneys who are like, ‘Did someone make a will for this person? Has anyone made an estate plan for this person? They’re located in this city, this state. wooWe are looking for documents that we think exist but are not quite certain. Then there’s the process of finding out: do they even have a will?

“I always tell my clients, ‘Keep your originals in a safe place. Make sure you tell someone where those documents are. Or at least, give them your attorney’s contact information.’ So if anything happens, they can call our office.

,[In that case of that client, the will wasn’t found.] We had to start all over again.” – roses

“There may also be temptation to work with an attorney who is not an expert in this area because someone’s cousin, who typically litigates, is willing to help you, or your divorce attorney feels that They can make a will together for you for a reasonable fee.Don’t fall into those traps.

“Estate planning is complicated and there are too many traps for uninformed lawyers. Find someone who is an expert, who knows how to navigate problems and with whom you feel comfortable. The National Association of Estate Planners and Councils is a Great resource if you need a vetted referral.

“It is important to get these documents right because when the chips are down and the documents are executed, the difference between a good set of documents can mean a lot of time, money, and heartache. In the long term Don’t skimp on the short term in exchange for problems.” – Walney