Some tips for avoiding common mistakes and problems in a will.
If you own property and care about what will happen to it when you die–who will inherit your things–you need a will. If you die without one, the probate court in your area will distribute your property according to the laws of your state. However, it’s not enough just to prepare a will. It’s critical that you also be clear about what to do and not do when you write one. Otherwise, there could be unintended bad consequences. For example, your will may not be legally enforceable after your death–it will be as though you died without a will–or your will may not do what you wanted it do when you wrote it. It’s also possible that your will could create problems for your loved ones after your death. Therefore, to help ensure that the will you write is legally valid and accomplishes your goals when you die, pay close attention to the following eleven tips. You may also want to get additional information about wills and estate planning by purchasing books on the subject, visiting estate planning sites on the Internet or buying an hour of an estate planning attorney’s time.
1. Understand the requirements of your state for what makes a will legally valid and enforceable. For example, you must sign your will and in most states, two disinterested individuals–people not mentioned in your will–must witness your signature. To learn what your state requires, call your local probate court or an estate planning attorney in your area.
2. If you create your will using a standardized form that you download from the Internet or purchase from an office supply store, or if you use will making software, be sure that the will you end up with complies with your state’s requirements. Otherwise, it won’t be recognized by your state when you die so it will be as though you died without a will.
3. Don’t share a will with your spouse. Each of you should have your own wills. A key problem with a joint will is that after the first spouse dies, the surviving spouse cannot revise it to respond to changed circumstances in his or her life. Also, the assets in a joint will can’t be distributed until the second spouse dies, which could be many years.
4. Be sure that when you write your will you are clear about your wishes. Instructions that are confusing or open to interpretation could make your will unenforceable or could open the door for disgruntled relatives to challenge its validity. If that happens, the probate court in your area will get involved, which will cost money and delay the distribution of your assets to your loved ones. It’s even possible that the court could decide that your will should be changed in response to a formal challenge.
5. Be aware that your surviving spouse is legally entitled to a minimum amount of your estate–an elective share. If you do not leave your spouse at least this much, he or she can go to court to get it after your death.
6. Understand your state’s property law. Most states are separate property states. If you live in one, the assets that you purchase on your own during your marriage as well as the income you earn belong just to you. (The same applies to your spouse). Therefore, you are free to leave your separate property to whomever you want in your will. However, if you live in a community property state–Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, or Wisconsin–you and your spouse are legally entitled to one-half the value of the assets you acquire during your marriage and the income each of you earns regardless of who purchased the assets or earned the money. Therefore, in your will you can only give away your share of your community property as well as any separate property you may own. In other words, you can’t give away your spouse’s half of the community property.
7. Be aware that there are certain kinds of property that you can’t give away through your will. In other words, these types of assets are not controlled by a will. They include assets you don’t own, assets with beneficiary designations–a life insurance policy or your retirement benefits, for example–and assets that you’ve already transferred to a living trust.
8. If you own real property located in another state–a vacation home at the beach or on the ski slopes for example as well as raw land or commercial property–you must write a second will that complies with the laws of that other state in order to give those assets away.
9. Make sure that your executor–the person you designate in your will to shepherd your estate through the probate process–knows where you have stored your will and has a copy of it. You may also want to give copies to other people you trust, like your spouse and adult children. If there is anything in your will that you think may generate controversy or unhappiness after your death, discuss those provisions with your executor so he or she understands your thinking.
10. If you want to revise or revoke your will, do it in compliance with the law of your state. Otherwise, your changes may not be legally valid or the will you thought you had cancelled may still be in effect when you die. As a result, the court may have to get involved. Also, if you cancel or change your will, make certain that you get back any copies of your original will that you may have shared with members of your family, close friends or with your professional advisors.
11. Once you have drafted your will, ask an estate planning attorney to look it over to make certain that there are no problems with it or that you have not overlooked anything important. A hour or so of an estate planning attorney’s time won’t break your bank and will be money well spent since it will buy you the security of knowing that your affairs are in order and that you will not leave your loved ones a legacy of legal and financial problems.