Whenever I hear someone say they wrote their own Last Will and Testament, a familiar phrase comes to mind, “Don’t try this at home!” Unless you are an experienced estate planning attorney, it is not a good idea to write your own Will, or to order a Will off a generic, non-state specific website. There are so many important details and formalities that go into the preparation and execution of a Will. The whole process can easily fall apart if not done properly. I have compiled a list of some of the top mistakes that can occur when using a “do-it-yourself Will”
- Improper Execution. When a Will is signed with an attorney, there is a presumption that it has been executed properly. In order for the Will to be duly executed, the testator (person signing the Will) must declare the document to be their Last Will and Testament before two disinterested witnesses, and all three parties must sign the document. The witnesses must be satisfied that the testator had capacity to make a Will – knew his or her family members and the assets in the estate. When a Will is signed without an attorney, it becomes the burden of the Executor submitting the Will for probate to prove that the deceased person signed the Will properly. To add further complication, if the witnesses do not sign an affidavit attesting to the deceased person’s capacity at the time of the signing, the Executor must locate them and obtain their signatures as part of the probate proceeding. For older Wills with unknown witnesses, this makes the process incredibly difficult, and ripe for objection by disgruntled beneficiaries.
- Failure to Name Successor Executors or Beneficiaries. While most people contemplate who they wish to leave their assets (beneficiaries) and the person who will administer the estate (Executor), it is not uncommon that an inexperienced Will draftsperson would forget to name alternatives. If the people originally named are deceased, the Will fails and the assets are distributed pursuant to state intestacy law.
- Not Considering Tax Issues. There are certain provisions which can be added to the Wills of a married couple that allow for New York state estate tax savings by preserving the unused credit of the first spouse to die. This is often done by including provisions for a bypass trust for the benefit of a surviving spouse. Without extensive knowledge of trust and tax law, one would not be able to draft a Will to take advantage of this tax planning.
- Disabled, Debtor or Minor Beneficiaries. When leaving assets to a disabled or minor beneficiary, special considerations must be taken. If a disabled person is unable to manage assets and/or is receiving means-based government benefits, leaving assets to them outright will jeopardize their ability to enjoy the inheritance. Similarly, if a beneficiary with creditors inherits property outright, their inheritance is now subject to their creditors. This can be avoided by having the Will leave assets to the debtor beneficiary in trust in order to protect the inheritance. Lastly, assets left to a minor beneficiary must be held in trust until they reach an age of majority. If left outright, someone will have to petition the Court to be the minor’s guardian in order to manage those assets since minors are prohibited from owning property.
- Losing Sight of the Big Picture. The final problem with do-it-yourself estate plans is that they often do not address the entire estate. A Will can only control assets in your estate when you pass away. If certain accounts are joint with another person, or if you have named beneficiaries on an account, those do not pass through your Will. Rather these assets pass to the joint owners or beneficiaries by operation of law. Writing a Will that leave certain assets to individuals is ineffective if there is a conflicting beneficiary designation or joint owner. This is why treating the Will as part of your overall estate plan and making sure all the designations line up cohesively is just as important as the Will itself.
Creating a Will is so much more than just writing down the names of those who you wish to inherit. It is about creating a comprehensive plan not only for your death, but disability and the future death and disability of your beneficiaries. While it may seem easy to write something simple yourself or download a form from the internet, failing to have a properly drafted and executed Will has major consequences that can leave your intended beneficiaries with much less than you intended.