There’s a lot that goes into writing a Will, and it can be easy to miss a step or forget to add important sections altogether.
To help you avoid these types of issues, here are seven common mistakes to look out for when you’re writing a Will and what to do instead.
1. Ignoring state rules/guidelines
Each state has different guidelines for writing a Will, including the Commonwealth of Virginia. For instance, in Virginia, a testator must have their Will “witnessed” (signed in front of them) by two competent adults, unless it is wholly written and signed in the testator’s own handwriting and proven by the testimony of two disinterested witnesses to be the testator’s handwriting and signature through the court hearing held after the testator’s death. If such guidelines are ignored, the Will may be held invalid by the court.
2. Naming the wrong person as an executor
If you choose someone to be an executor who does not have the time, willingness, or competency to take on the responsibilities listed, it can create conflict and take longer for the distribution of a decedent’s estate to be carried out consistent with the wishes set forth in the Will. It’s important to carefully select an executor, talk to them about the role, and name at least one or two alternates in your Will to serve as backups just in case your first named executor is unable or unwilling to serve.
3. Not specifying a plan for certain assets
Some of the most important assets people often forget to address as part of their Will relate to the power of their Executor to deal with their online/digital assets. These can include social media accounts and profiles, email accounts, and even banking login credentials. If you want these to be given to a specific person to own and manage after your death, or if you want these accounts to be closed, make sure your state this in your Last Will and Testament. In Virginia, you can also create a Memorandum or Tangible Property List that permits you to direct your Executor to give certain items of your jewelry, clothes, furniture, and books, which you can update on your own – as long as you have a signed Will – as long as it is signed and dated by you, and found with your Will at your death. If there is no guideline, your Executor may find they have to donate or sell those items to pay creditors or other debts of the estate.
4. Failing to name a guardian for your minor child(ren)
If you’re a parent of minor children, it’s important to factor in their care and well-being when drafting your Will. Children whose parents die before they reach 18, as well as adult children with special needs, need an appointed legal guardian in the event that both of their parents pass away. Naming a guardian in your Will (rather than leaving the decision up to the court) is the best way to ensure someone you know and trust assumes responsibility for your child(ren) should you die prematurely. However, it is important you talk with the individual(s) you plan to name as guardian to ensure they have the willingness and ability to take on this role.
5. Including funeral plans
Many people mistakenly believe they must spell out plans for their funeral in their Will. In reality, you risk that your Will may not be read by your executor until after your arrangements (such as cremation or a funeral) have already been made by your family without benefit of reading your Will. If you have specific requests for your burial, cremation, or memorial service, you should consider only providing a general reference of those wishes in your Will and a Durable Medical Power of Attorney while indicating you plan to prepare a separate, more detailed private document setting forth the full details of your plans.
6. Leaving your Will out of date after a life event
Things like marriage, divorce, birth of a child, or even death of a spouse can occur after you’ve drafted an estate plan. It’s crucial to update your Will as circumstances change so that it reflects the most current information and directions as to how you want your assets (not otherwise distributed to a named beneficiary) to be distributed. You should think about review your existing Will at least every five year five years to determine if changes are needed, and especially if there a major life has taken place.
7. Not getting help from an estate planning attorney
Estate planning attorneys know the ins and outs of the locate estate planning and probate laws. This ensures they can properly guide you on how to navigate the entire process of not only creating a proper Will but ensuring it is administered properly after your death. They can help educate you on how to avoid probate, determine the best way to name and provide for your beneficiaries (i.e., adult versus a minor child), establish financial and medical powers of attorney, set up a trust if better suited to your estate planning goals, and reduce taxes.
If you’re looking for an estate planning attorney in Virginia to help you write your Will and ensure all state guidelines are met, contact the Law Office of Patricia E. Tichenor to schedule a complimentary consultation.