Seven Mistakes Made in Drafting a Will
“To err is human; to forgive divine,” but the error of a badly drafted Will, can cost your heirs money and heartache.
It can rob one or more of your beneficiaries of their inheritance or even trash your entire will, leaving your family at the mercy of a government distribution system.
Forget to make word processing changes in a Will precedent template? Happens in the best law offices. Many different drafting errors can occur, ranging from incomplete attestation clauses, causing, at the least, extra affidavit expenses, to executing duplicate originals of the Will, which can lead to severe problems if a testator later adds a codicil to one of the “originals” but not to the other, to failing to mention that the document being executed is, in fact, the Last Will and Testament of the testator, potentially causing total failure of your Will.
Here are seven common drafting errors to “avoid as you would a thief”; although your loss will likely be less with the thief.
1. Did you sign at the end of the Will; or sign it at all?
Many Will forms are in the format “I, (blank space) of …..” Sign your name in the blank space in the first paragraph and fail to sign on the signature line at the end of the Will? Your entire Will is invalid, even though it is signed at the beginning by the testator and at the end by both of the witnesses to his signature. Failure to sign at all, even though your name may be typed in and witnessed, is also fatal.
2.Did you name your Executor, as an Executor?
Will forms typically have a blank in the third or fourth paragraph of the Will to fill in the name of your Executor. This space may or may not be followed by specific trust terms on which the Executor is granted conduct of the Estate. In many cases, the Executor, being a trusted family member or friend, is also a beneficiary under the Will. If the blank with the Executor’s name, isn’t filled in, even though he or she is mentioned as a beneficiary, the extra court expenses of appointing an Executor (an Administrator) will be incurred by your estate.
More often, this blank is filled in but the proper trust provisions, after words similar to
“I GIVE, DEVISE AND BEQUEATH all my property of every nature and kind and wheresoever situate, including any property over which I may have a general power of appointment, to (name of intended Executor),”
are not filled in. This results in an outright gift to the Executor and transforms any subsequent gifts into contingent gifts. (contingent on the Executor pre-deceasing you)
Alternatively, the above words are misunderstood by the testator (as giving the Estate to the Trustee) and are crossed out, which will have either the same effect already mentioned, or the effect of leaving your Will without an appointed Trustee (Executor), depending on which words are crossed out and what is substituted in their place.
3. Failure to specify alternate beneficiaries.
This is an omission that occurs frequently in home-drawn Wills and can have serious consequences to your estate, even if, when you die, your beneficiaries are all still alive. In the case, for example, that you leave a share to your son, and specify that he will receive it at age 25, you die when he’s 18, and the age of entitlement in your state is 19, if there is an alternate beneficiary named, the terms of your Will are valid. Your son will get his gift at age 25. If there is no alternate beneficiary, the Will is valid, but your son is entitled to apply to court for receipt of his share the moment he turns 19 years old. Obviously, if your beneficiaries predecease you or die with you and no alternate has been named, your Will becomes meaningless and the government distribution scheme kicks in. In some circumstances, this scheme may even deliver your estate to the government. (weren’t taxes during your lifetime enough for them?)
4.Failure to clarify payment terms, (if any) for your Executor.
In most states, Government statute or regulation sets the rate at which Executor’s fees are to be paid. This rate will apply if no specific stipulation is made in your will AND if the Executor is not a beneficiary under the will. Failure to specifically define such payment in the Will, in those frequent cases where the Executor is also a beneficiary, gives rise to the legal assumption that your Executor receives no compensation other than the gift in the Will. If you wish your Executor to be paid more or less than the government rate, or to be paid, even though he’s also a beneficiary, ensure you specifically state this desire in your will. (charging clause)
5.Failure to identify your beneficiary, alternate beneficiary, Executor, or additional trustee(s).
Who is your beneficiary (alternate, etc.)? You know the names of your friends and relatives, but you’re no longer around when proper identification becomes an issue. For example, “Bob Smith” may be your brother and sole beneficiary; but if you failed to mention in the Will that it was your “brother, Bob Smith,” there may be quite a line-up of Bob Smith’s applying for a share in your estate. Insufficient identification is probably the commonest error (aside from the extremely common word processing errors, which cause a variety of problems). Controversy and expense for your Estate are the consequences.
6. Your beneficiary as Witness.
Want friends or family to witness your Will? Most jurisdictions require two witnesses. Neither should be a beneficiary of the Will. A beneficiary/witness will not invalidate the Will, but will forfeit any gift he or she was meant to receive. As well, substantial additional expenses will accrue to the estate dealing with the estate surplus resulting from a lapsed gift.
7.Failure to check your math.
Did you give away too much or too little? If the gifts in the Will total more than 100% of your estate, one or more of your beneficiaries will lose part or all of their bequest. If you’ve given out less than 100% of your assets, your estate will incur considerable extra expense to obtain court approval (Administration) for the disposing of the remainder of your estate. For example, suppose you left 30% of your estate to your spouse,15% to each of your 4 children and 10% to each of your 2 aunts. Total 110%. Result will be confusion, expense, and someone will lose. Keyboard error is a frequent cause of this easily checked problem.
In summary, If you draft your will with the help of a Wills package take care to follow instructions carefully and guard against drafting errors. Don’t be afraid to cross check your information with other available resources.
If you have a professional prepare your Will, still check it carefully for mistakes and drafting errors.
Make especially sure to ask questions about language or phraseology you don’t clearly understand. Don’t let a feeling of intimidation abuot your lawyer stop you. Lawyers’ staff works from pre-written templates, lawyer and staff are busier and more stressed than most people, and some offices mass produce Wills, all of which can cause undetected errors.