What to do if it does

Make a seemingly minor misstep when you draft your will, and your assets might be divided in a very different manner from what you had intended.

The biggest mistake of all is dying without a will, so don’t let fear of making a mistake prevent you from drafting one — either with the assistance of an attorney or on your own with the help of a guidebook or will-creation software program. Just be sure that you — and your attorney, if you have one — avoid these common errors…

  • Overdoing equal apportionments. Parents often try to divide every asset exactly equally among their children in wills. This can cause problems when it means that a large, difficult-to-divide asset, such as a vacation home or a valuable piece of art, is left to more than one person.
  • Example: You leave each of your four children a share of your vacation home. Two of your kids love the home and want to keep it in the family, but the other two are not doing as well financially and would rather sell it. Despite your good intentions, your gift sparks a family fight that could last for years.

    Better: Find out in advance how each of your children feels about your most valuable possessions. If some of them are especially fond of particular items, consider leaving these assets exclusively to them. Give other children a larger share of other assets to balance things out. Explain your decision in a letter kept with your will so that everyone understands your reasoning.

  • Including unexplained “surprise” heirs. Surprises are dangerous in wills. They can lead to hurt feelings, confusion and even legal battles. Family members often become suspicious or resentful when someone they do not know very well receives a significant portion of an estate.
  • Better: To minimize problems, include a letter with your will explaining who this “surprise” heir is and why he/she is receiving the bequest. An explanation should blunt any concerns among — and potential legal claims from — family members that this person exerted undue influence on you when you wrote the will.

    Example: “I’m leaving this money to my neighbor to thank him for the many hours he spent looking after me and my home during these past few years, when I no longer could get around well myself.”

  • Setting conditions. Some wills say that the kids or grandkids must graduate from college, marry or achieve some other goal to receive their inheritances. Unfortunately, these attempts to influence heirs from beyond the grave usually result only in headaches for the executors, because heirs often find ways to subvert the intent of the contingencies.
  • Examples: A potential heir might “graduate” from a Caribbean diploma mill to satisfy a college requirement… or marry and then quickly divorce to satisfy a marriage requirement.

    Better: If you trust your heirs, give them their bequests outright (or outright upon reaching a certain age). If you do not, do not leave them much money under any circumstances.

  • Trying to cut a spouse out of a will. In most states, spouses are legally entitled to no less than one-quarter to one-half of the estate. (The exact minimum depends on the state.) In community property states — spouses legally own half of anything acquired or earned during the marriage (exceptions include items received as gifts or inheritances), so up to half of “your” property may not really be yours to give away. (Ask your tax advisor if this applies to you.) If you cut a surviving spouse out of the will despite these restrictions, he/she can claim the share allowed by state law. This means that other beneficiaries would have their shares reduced.
  • Better:If you want your spouse to get less than the amount legally mandated and the spouse agrees, he/she can waive the right to claim the share provided by state law.

  • Leaving everything to a spouse. Married people often simply leave all of their assets to a surviving spouse. If your spouse later remarries and then dies before his/her new partner does, the partner might wind up with all of your money, leaving your children and/or other intended heirs with nothing.
  • Better: If you want to be sure your assets stay in your family, an attorney can help you set up a trust that passes your assets from you to your spouse, then on to your children after your spouse’s death.

  • Disinheriting children (or grandchildren) by omitting them from the will. You are not legally required to leave money to all (or any) of your children or grandchildren. If you do choose to disinherit a descendant, however, it still is smart to mention this person in your will. If you fail to do this, depending on circumstances, the descendant might be able to contest the will on the grounds that you simply forgot to include his name. Some people try to solve this problem by giving the disinherited descendant a token bequest of $1… or by writing straight out that this particular descendant receives nothing. These strategies are unnecessary.
  • Better: Include a list of all of your descendants in the will — including this person — to show you have not forgotten anyone and then state who gets what.

  • Assuming a will takes precedence over other financial documents. The beneficiary designations on your retirement accounts, life insurance policies and living trusts supersede your will. People often neglect to update the beneficiaries for these accounts on the flawed assumption that the instructions in their wills will dictate the distribution of these funds after death.
  • Examples: If you fail to change the beneficiaries on your retirement accounts when you divorce, your ex-spouse could wind up with your IRA, even if your will states that your assets — including specifically this IRA — should go to someone else.

    Better: Update of all your beneficiary designations whenever there is a major event in your life that would warrant such a change, such as a birth, death, divorce or marriage.

  • Being too specific. Some people try to spell out in a will who should get every last teacup. Extreme specificity in wills is more likely to cause problems than solve them. You are bound to accidentally leave something off the list, and your inventory of possessions is likely to change many times between the time your will is written and your death, forcing frequent updates.
  • Better: Provide specific instructions for the distribution of possessions of particular financial or sentimental value, then let your heirs divide up the rest, perhaps by stipulating that they select items in turn.

  • Not signing the will legally. People sometimes fail to realize the importance of signing the will in the presence of witnesses. Wills have been invalidated because people stepped into the next room to find a flat surface to sign on while a witness remained behind.
  • Better: Sign the will in the presence of at least two adult witnesses.

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