6 Common Mistakes People Make When Writing a Will

Do you have a will? Creating a will is one of the first steps in making a financial plan. Why don’t people have wills? Many worry that they won’t know how to draw up these documents, or that it may be too expensive. Others just haven’t gotten around to it.

While planning for the end of life may not be fun, doing so offers peace of mind because it takes the uncertainty out of what will happen to your estate when you die. Still, many people say they don’t feel a will is necessary because their estate is so simple. It’s not the value of the estate that determines the need for a will — Knowing who will be in charge of resolving administrative issues and who will receive your assets will avoid a lot of anxiety, concern, and conflict among family members.

What happens if you don’t leave a will?

Some people mistakenly believe their assets will become the property of the state. But there are laws of intestacy that direct to whom your probate assets will be distributed in the absence of a will. It is said that if you don’t have a will, the state has one for you.

Is writing a will yourself an option?

About half of all states allow an individual to sign a “holographic” will, or a handwritten will. Also, software programs for writing your own are readily available. However, there are issues that are not generally considered when crafting a “do-it-yourself” will — not issues of style, but matters of content that affect the legality and legitimacy of the will.

Working with an experienced attorney, such as Scott C. Painter, P.C., is very worthwhile, whether to draft a will from the start or simply review one the client has created. If you have a will, or are ready to write one, Attorney Painter advises avoiding these common mistakes to save your loved ones unnecessary grief and confusion.

Common Mistakes

  1. It is not signed properly Not only must the maker of the will sign it, but two witnesses who were present when you signed must sign it, too. Neither can be a beneficiary. In a majority of states, any gift to a witness-beneficiary will be reduced or even voided.
  2. It does not dispose of all property DIY wills often leave out the “residuary provision” that picks up assets that may have been overlooked and not listed specifically in the will.
  3. It creates joint tenancy assets These allow another individual to help write checks on a bank account, for instance, or become the owner of a piece of real estate upon the death of the original grantor. Unfortunately, unintended consequences from these arrangements can create litigation. For example, the person who added another to a checking account as a joint tenant may not have understood that the entire account will pass to the joint tenant rather than to the estate.
  4. It has unclear descriptions You may have a keepsake that you want to give to a particular relative. What happens when you have more than one item that is similar, or relatives with similar names? Such things can cause hard feelings.
  5. It does not take into account property passing outside of the will Many assets (life insurance, pensions, bank accounts, etc.) can be set up to pass directly to the named beneficiary. Because these assets are not controlled by the will, this is one area where counseling by a professional may be wise.
  6. It fails to anticipate the death of beneficiaries or the executor It’s important to name alternate beneficiaries, or an alternate executor, in case any of these individuals die before you.

Buyer Alert

If you choose to work with an attorney, ask what to bring to the first meeting. This may include a description of your wishes and a list of all assets and liabilities; details about potential beneficiaries; and all relevant documents, including deeds, beneficiary designations, prior wills, property valuations, and divorce decrees. Being organized can make the first session shorter, more productive, and less costly.

These documents are important, too.

Once you have a will or are seriously pursuing one, there’s yet more to do. There are other documents to consider, including power of attorney, a living will, and a health care proxy.

Power of attorney designates a person who can act on your behalf in the event you’re incapacitated. He or she can help with everything from applying for financial assistance or Medicaid to making sure your bills and taxes are paid. Attorney Painter can educate you about the three different types of powers of attorney and which is most suitable to your life situation.

A living will expresses your health care wishes and may call for appointing a health care proxy who can make decisions for you. It may include direction about whether or not you want life-prolonging procedures if there is no probability of your survival. It may also designate specific care you do or do not want (dialysis, mechanical ventilation to assist with breathing, artificial hydration and nutrition, CPR, etc.). It can express your wish to be an organ or tissue donor, to donate your body to science or education, your desires for palliative care, and any spiritual or religious considerations.

Seriously consider making an effective will before a crisis strikes, no matter your age, health, financial condition, or any other circumstance. If you do, there is a better chance that your wishes will be carried out, and that you may lessen the stress your loved ones will endure if something happens to you.

The law office of elder law attorney Scott C. Painter, P.C., is located in Wyomissing (outside of Reading, PA, in Berks County,) and offers trusted legal services in the areas of elder law, including nursing home planning, trust and estate services, and veterans benefits. Scott C. Painter is a Certified Elder Law Attorney (CELA®), and he is also a member of the National Association of Elder Law Attorneys (NAELA).

If you have an issue or question, we encourage you to call us. With legal matters, time is of the essence. Call us for a consultation at 610-378-5140. The $300 consultation fee is waived if Attorney Painter is retained to perform services.

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