Common Will Mistakes to Avoid

Common Will Mistakes to Avoid

Dying without a will (or “intestate”) means your estate assets will pass to your heirs, according to the intestacy laws of the state. Under the state’s intestacy provisions, if your spouse is alive, and you had no children (with any person), your assets will pass to your spouse. In many states, if you had children, your surviving spouse would get half of the assets of the estate, and the other half would be divided equally among your children.   In Massachusetts, if all of your children are children of your surviving spouse, all of your assets will go to your spouse.  If you didn’t have a surviving spouse, your children would share equally in the estate.  Without parents, a spouse or children, the intestacy laws leave your assets to siblings.  But, what if you didn’t like all of your siblings?  Or, what if one sibling had less opportunities and resources than the other siblings and you would have wanted to give a larger percentage to that less fortunate sibling?    Dying intestate can mean that you get the state’s rules and the state’s plan and not your own.

The Aiken (SC) Standard’s recent article entitled “Avoiding mistakes with your will” says that a critical point to remember is that only your spouse must survive in order to be an heir. Typically, if one of your children had died, their children would get their share.

Every state has specific requirements for what constitutes a legal will. For example, in Massachusetts, a will has these requirements

  • It must be in writing
  • The maker of the will (the testator) must be of sound mind
  • The maker of the will cannot be a minor
  • The will must be witnessed by two witnesses who were present when the testator signed the will and who also witnessed each other sign the document and
  • The will must be notarized.

The witnesses must not be beneficiaries of the will.

Because a will is so critical, you should employ the services of a qualified estate planning attorney. If you and your spouse already have a will prepared, it is important that these documents be reviewed periodically to make certain that your instructions are up to date and that your will recognizes any changes that have occurred in either federal or state law.

People frequently forget about including certain assets in their wills, like special collections of memorabilia or other treasures.

Be sure that you designate an executor (called a Personal Representative in Massachusetts) to serve in this capacity who is well-organized, calm and willing. You should typically name a person who’s younger than you and also name an alternate executor, in case your primary choice is unable to serve.

If you have any minor children, you should name a guardian for those children. You can divide the duties of a guardian, by naming a different guardian to handle the children’s financial affairs and one who provides care for your children.

After your will is drafted, be certain you tell your family know where it’s kept, and be sure that your will is in sync with other documents, like your life insurance policies and other benefits that will pass directly to beneficiaries named in those documents.

Reference: Aiken (SC) Standard )(March 22, 2020) “Avoiding mistakes with your will”