According to LegalZoom, approximately 55% of American adults do not have a will in place, and it’s estimated that probate (court) costs exceed $2 billion per year, with roughly $1.5 billion of that amount allocated to pay attorney fees. While passing away intestate (without a will) can be costly, it can also mean that your specific directives could be ignored.
Creating a will can be extremely simple — or very complex — depending on your family, assets, and specific bequeaths. We’ll cover some of the basic mistakes to avoid here, but be sure to discuss options with an experienced attorney. Having a will can also eliminate many family conflicts, as highlighted in the book, The Family Fight — Planning to Avoid It.
- Believing you don’t need a will — If you don’t have one, your state do But before anyone can receive any of your assets, your “estate” must go through probate. This is a long, involved legal proceeding that can take up to 18 months or more to decide who gets what, and what happens to children. To see what could happen in your state if you die without a will, go to Nolo.com: Intestate Succession.
- Failing to update the will when family status changes — Remember to update your will when there is a change in marital or family. This includes changes involving de facto relationships (one without a legally binding marital status), de facto children, new births, adoptions, and/orchildren from a previous marriage.
Assuming everything will go to a spouse — Every state’s guidelines are different, and become even more complex if there are children involved from the current marriage, a previous marriage, or a de facto relationship.
- Splitting your assets “equally” — It’s often impossible to divide assets. Example: Jo stated her brothers fought for over two years, spending more than $42,000 in legal fees to settle how their father’s assets worth $8,000 should be “equally” divided.
- Not accurately naming beneficiaries — Be specific when naming beneficiaries, including their full legal name (don’t use nicknames orabbreviations), relationship, current age or birthdate, and address. The more details, the fewer interpretive mistakes will arise at a later time.
- Failure to have a living will — Also referred to as an advanced medical directive or healthcare directive, a living will is a document authorizing medical personnel and family members to follow your wishes in prolonging your life through artificial means if you become incapacitated. See Mayo Clinic: Living Wills for more specifics, or CaringInfo.org to download your state’s advance directives. Example: Marshall did not have a living will, so his estate of more than $500,000 was used to keep him alive, even though his family and doctor knew this was not what he intended. As a result, his wife of 45 years was forced to live on a meager Social Security income.
- Not considering a living trust — This is a legal document that explicitly states what happens with all of your assets. When you die, the assets are transferred to specific beneficiaries, which can happen in a few weeks, does not require an attorney, and avoids the costs of probate.
- Not taking advantage of TOD (transfer on death) — Some states allow you to transfer assets (car, home, bank accounts, securities, ) to beneficiaries without going through probate. See Nolo.com: Avoiding Probate with TODs and SEC.gov: TOD Registration for Securities. Caution: Be sure the TODs don’t conflict with bequests noted in your will, and remember to revise them if family dynamics and wishes change.
- Falling for a “trust mill” scam — The Consumer Protection Division of most states’ Attorney General offices warn that these scam artists exploit seniors’ fears that their estates could be eaten up by probate costs and taxes. Unscrupulous companies then place the clients’ funds into phony or offshore bank accounts.
- Ignoring leftover assets — If you do not want the state to claim your assets or distribute them according to mandated guidelines (to heirs or family members you do not want to receive them), then they must be listed in the will. Also include a leftover — or residuary — provision that will apply to assets after all specific distributions, gifts, and bequests have been made.
- Excluding social media content or identity — Heirs, business associates, , may claim — and fight over — these assets if a specific beneficiary has not been named.
- Using a beneficiary as a witness — In many jurisdictions, beneficiaries are not allowed to also act as a witness.
- Neglecting to periodically update — An inheritance, significant growth in assets, retirement, a serious illness, and other life events will typically generate a need to review or update your will.
- Failing to address property in multiple states — Each jurisdiction may have different ways to treat distribution of property, so it’s important to be very clear on the location of all property, and to specify who should get what.
- Not changing the name of an executor, beneficiary, or guardian who subsequently passed away — Major problems can arise when those named in your will are no longer living. This is another situation where the state will decide how to proceed.
- Failing to tell family members where to locate your will — It won’t do any good to have one if no one can find it.
- Not clearly designating gifts to a specific charity — As with beneficiaries, provide as many specific details as p Example: Betty left a bequest to the cancer charity group where she volunteered each week, but because she only listed “cancer charity” in the bequest, which was not specific enough (there are hundreds of them, four recently accused of fraud), the intended recipient did not receive her donation.
We hope this information gives you some basic steps to take and traps to avoid to protect and direct your assets. As always, consult a trusted professional before making any important legal decisions. These resources may also be helpful: USA.gov: Find a Lawyer, American Bar Association (ABA): Public Resources, Nolo.com, Stateside Legal (legal help for servicemembers and veterans), and TheLaw.com.