What is the best way to create a Will? Should you hire an attorney to help you or should you buy a program to help you? If you decide to buy a program there are seven mistake to avoid while creating your Will. If you hire attorney they should already cover these issues.
The first mistake is not knowing what is required under the laws of your state. Each state has different laws pertaining to Wills. Some states require you to have a typed written Will while a few allow for a holographic (handwritten) Will. Some states require you to have your Will notarized while other states allow for you to have witnesses. But if you do not know the laws in your state you could actually make the Will you wrote invalid. In addition, if you have property in another state you need to know that state’s laws too. But most importantly after you create the Will, you need to sign and date your Will.
The second mistake is not understanding the terminology for transferring your assets to your beneficiaries. There are two main terms that provide direction for distribution of your assets. One term is per stirpes, which is the inheritance by the right of representation. The other term is per capita which is inheriting according to the number of individuals. If you get these terms mixed-up, the wrong beneficiary might get the inheritance.
The third mistake is not naming a successor executor or personal representative. The first executor could be determined to be incompetent, pre-decease you, or just decides they do not want to be the executor of your estate. Then the Court will choose an executor for your estate. The new executor might not have your family’s best interest in mind.
Remember when you pick an executor; this person will be representing your estate and your wishes in Probate Court. This job can be a very stressful and taxing, so pick some one who does not crack under stress, can understand various documents, and court procedures. If the job is too big, you might want to consider picking co-executors or a professional trust company as an executor.
The fourth mistake is not being specific. You might want your son to be the beneficiary of your business but you did not name which son. Be specific when naming the beneficiary including a middle name and address. Even though the beneficiary might move, the information will gives the Court a better reference of who is the correct beneficiary. You should not only name a beneficiary for your assets but also a secondary beneficiary in case the first beneficiary would pre-decease you.
In some states, you are allowed to leave another document that transfer your tangible personal property if the Will references this document. You need to make sure the Will reference this document and keep this document with the Will. This document should list specifically the beneficiary and the item(s) you want that person to receive.
The fifth mistake is not including a provision for children from a former marriage, adopted children, deceased children, and children who are born after you create the Will. If one of your children predeceases you then you will need to address you is going to get that child’s share. In addition, if you have not legally adopted your stepchildren they might not be considered as “your children” under the law.
The sixth mistake is not providing for a guardian. Guardianship is not only for your minor children but also for any adults that are considered incompetent that you are guardian for already. As you and your spouse get older, your spouse may be considered incompetent by having Dementia or another medical disease. You should include a provision for your spouse’s guardianship. Also, make sure you include a provision for children from a former marriage, adopted children, stepchildren and children who are born after you create the Will.
The last mistake is not updating your Will. You should review your Will once a year and after major life events. Some major life events include marriages, birth of children, and death of a family member, adoptions, divorce, and moving to a new state. A Will should not be a once and a lifetime event. Do not stuff it in a draw and forget about it. After you have created a Will put it in a fireproof safe place and let your family members know that the Will exist.
Although, each state has its own law regarding the provisions of a Will, the above should give you an idea of mistake to avoid while creating your Will.