Putting your affairs in order is one of the most important things you can do for your loved ones. But writing a will isn’t actually as easy as making a list of your treasured items and deciding who should receive what. Because the decisions you make when estate planning will affect your descendants long after you are gone, make sure you’re aware of all the issues and potential pitfalls that are involved with will writing.
- write a will
- be aware of will contests
- take care when disinheriting relatives
- consider a living trust
- speak to a lawyer
- neglect to update your will
- forget to destroy old wills
- rely primarily on will software
- make your attorney your beneficiary
Though it may seem obvious, make sure that you write a will. Dying intestate, or without a will, means that the courts will divide up your estate for you. You might wish for a particular relative to recieve a large portion of your estate—or conversely, none of your estate—but without a will, the courts have no way of legally upholding your wishes. Be sure that you make your wishes known.
For many, a will contest is a nightmarish situation. The idea of your will being challenged by someone who feels dissatisfied with what it says is understandably frightening; however, it’s important to remember that there are rules about who can do so. According to the law, only someone with sufficient legal standing can contest a will. In other words, a person who challenges a will must stand to benefit from it in some way. When thinking about a will contest in the context of your own estate planning, remember that rules exist to ensure that your wishes are carried out.
It’s also important to be aware of several factors when multiple versions of a will exist. Generally, each draft of a will contains instructions revoking previous wills; this ensures that the most current will is the one considered valid.
However, what if the latest version of the will is considered invalid? Then beneficiaries of the previous will may have a case for challenging the current will in favor of the most recent draft. You can avoid this issue, however, by destroying previous versions of your will. If a will contest is something you genuinely fear, it’s also key that you discuss this potentially fraught issue with your attorney.
Disinheritance is a potentially sensitive subject. Though it may be more tempting to avoid offending anyone by simply not mentioning the relative whom who wish to disinherit, this may introduce more problems as the disinherited relative may claim they were accidentally left out. Similarly, some individuals may feel the need to include a justification in their will for a disinheritance (for example, if you believe that one of your children is financially stable and thus doesn’t need a portion of your estate). However, resist the urge to do so; if you explain your reasoning, the disinherited—and often disgruntled—relative may use this justification as a way to challenge your will.
Although a will is enough for most people, for others with more complex circumstances, it may not take into account all of their concerns. A living trust created during your lifetime is a way to hold property for another beneficiary. So if you have minor children or adult children with special needs, you could leave your property to them in a trust. Not every situation calls for a living trust, however, so be sure to discuss your options with an attorney first.
Though all of these points offer solid guidance to get you started, above all, it’s crucial to speak to an attorney about your estate planning options. A lawyer will be able to judge your specific situation and help you pinpoint particular needs. Are you worried about minor children or adult children with special needs? Are there tax issues that you’re concerned about? How will you deal with out-of-state property? These are all issues that an experienced estate planning attorney will be able to help you address.
Similarly, there may be points of law specific to your state that you are unaware of. For example, in the state of New York, the writer of a will must declare out loud, before two witnesses, that this is his or her will; otherwise, the will is considered invalid. Consulting with a lawyer is the best way to ensure that you know all your options.
While the first step is writing your will, it’s also paramount to update it periodically. Because your circumstances may change over the course of your lifetime, your will should reflect this. For instance, you may have additional children that you need to provide for, or you might decide that you want to leave less to one of your children. Estate planning isn’t a onetime task that you complete and forget about, so take care to ensure that your will accurately reflects your wishes even as your situation changes.
As we’ve emphasized, updating your will is key; however, it’s just as important to destroy prior versions of your will. If two wills exist at the time of your death, then the later will could potentially be challenged and declared invalid—even if this version reflects your actual wishes.
But there are easy ways to avoid this tricky situation. You can simply write “void” or “cancelled” on the older will; you can also shred or burn the old document.
Although a variety of software programs claim that they allow laypeople to successfully write a will on their own, beware. Many of these programs will in fact result in wills that are far inferior to those written by attorneys. Some products include outdated information; most don’t offer enough options (few programs exist that will let users create a special-needs trust, for example). Still others will allow users so much freedom that one clause of the will may contradict another.
In other words, though it might be tempting to save a little money by wrapping up your affairs on your own, remember that in the long run, you will also be sacrificing the peace of mind that comes with knowing your estate is ultimately in good hands.
It’s generally considered poor practice for a lawyer to be named as the beneficiary of a will they help to create. Attorneys who benefit from a will with which they assisted may have exerted undue influence over their clients: an ethical conflict of interest. If your lawyer suggests being named as beneficiary, be wary of his or her motivations, and consider obtaining a second opinion before making a decision.
Writing a will is an involved and time-consuming process, and it might seem tempting to put it off. However, as we’ve stressed, dying without a will means your wishes may not be followed when it comes time to divide up your estate and provide for your descendants. In order to ensure that a stable future for your loved ones, don’t put off writing a will; act now.
Writing a will is an emotionally fraught issue. For many people, making sure their relatives and loved ones are taken care in the event of their demise is essential. Though there are myriad issues and concerns to be aware of when estate planning, these guidelines should offer a solid framework to get you started. Above all, remember that this is a potentially complex subject and one that you don’t want to take on yourself. See an attorney as soon as possible and give both you—and your descendants—the peace of mind you need.