10 Common Mistakes When Drafting a Will

shutterstock_110330690-700x300Wills can be intimidating. Aside from the contemplation of death, trying to craft a legal document that accomplishes everything you want can be a daunting task. Interpreting wills without the help of the person who drafted it is a notoriously tricky practice, so getting it right is essential.

With so many ways to get it wrong, how do you make sure you have a valid will that properly takes care of your estate? Be sure to avoid these common mistakes when you draft your will:

1. Writing It by Hand

Yes, you can write a will by hand, but you probably shouldn’t. While some states recognize handwritten (or “holographic” wills) they may limit what they can bequeath or how they can be revised. You’re better off having a type-written will (perhaps using this sample form) signed by two witnesses if you want to guarantee the will is valid.

2. Not Knowing State Law

State wills laws can vary, and each state has its own particular rules on validity, construction, and interpretation. Just because a will is legal in one state, it may not be in another. Knowing the ins and outs of state statutes on wills is essential if you want to your will to successfully distribute your assets after death.

3. Including Things You Shouldn’t

The natural inclination is to make sure all of your possessions are listed in your will. But there are things you shouldn’t include in your will. Things like your funeral plans, life insurance and retirement plans, jointly held property, and your “digital estate” can and should be left out of your will. (And you should probably avoid any illegal gifts and requests as well.)

4. Not Including Your Business

One thing that should be included in your will is your business, especially if you are a sole proprietor. Whether you plan to keep a business in the family through a trust or you want the company sold upon your death, your business interests should be addressed in your will.

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5. Not Creating a Living Will

Wills don’t only take care of your assets after you die. Your will can also take care of you while you are alive. A living will is a legal document that sets out how you want to be cared for in case of a medical emergency or if you become incapacitated. A living will can cover topics like resuscitation, desired quality of life, and end-of-life treatments, and can also include any treatments you don’t wish to receive. (And if you are considering a living will, you may also want to consider a durable power of attorney as well.)

6. Not Making Revisions

Just because your will is drafted, doesn’t mean it’s done. Life circumstances can change, and you may need to revise your will. Marriage, divorce, children, business acquisitions, and asset sales can all affect the terms of a will, so make sure that any major life changes are met with revisions to what will happen to your estate after death.

7. Leaving Everything In the Will

Just because you want to leave things to your heirs and beneficiaries doesn’t mean you have to do it through a will, and you don’t have to wait until you die. Giving gifts while you’re alive can mean avoid a big tax hit in death. The IRS allows gifts up to $13,000 a year per individual to go untaxed. So not only does the recipient save the tax hit on the gift today, it avoids estate taxes later.

8. Not Understanding the Tax Code

Speaking of estate taxes, they can be some of the most confusing of an already complex set of statutes. Estate tax law is difficult even for the experts, and, like wills laws, estate taxes can vary by state. It may take an expert eye to make sure you’re not burdening your beneficiaries when you’re just trying to bestow a gift.

9. Waiting Too Late

You’re never too young to write a will, as long as you’re over 18 when you draft it. Planning for your death while you’re still in the prime of your life may feel unwarranted or uncomfortable, but dying without a will is worse. If you die intestate, your assets go into probate — a process that can be lengthy and expensive.

10. Writing It Yourself

There’s no law saying you can’t write your own will. But understanding the other laws that apply to wills may necessitate calling in a professional. This simpler your estate and family situation, the easier it will be to draft your own will. But if you want to feel confident that a will can account for a more complex asset situation, you may not want to go the DIY route.

The best way to avoid these mistakes is to consult with an experienced estate planning attorney before drafting your will.