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Writing Your Will Yourself? Avoid These Terrible Mistakes

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Drafting a will does not necessarily have to rise to the complexity of rocket science, so using a low-priced online “do it yourself” service such as Rocket Lawyer, ­LegalZoom or Quicken WillMaker Plus can be a reasonable option for simple estates. Although hiring an experienced estate-planning attorney certainly is a safer choice, if you’re not willing to pay the hundreds of dollars that an attorney would charge for a straightforward will, these digital services are better than having no will at all. They generate perfectly acceptable state-specific documents by providing fill-in-the-blank forms or questionnaires that generate completed forms. With their assistance, you might be able to write your own will in less than an hour for just $40 to $100. But if you do take this route, beware of the following mistakes people commonly make when preparing their own wills…

Mistake: Attempting to disinherit a descendant by omitting any mention of him/her in the will. This sounds reasonable—if you don’t want to leave money to someone, why mention the person in your will? But when descendants are not mentioned at all, they often contest those wills on the grounds that they were left out accidentally.

Better: Mention the disinherited heir by name, and expressly state that you are not leaving this person a portion of your estate. Example: “I acknowledge that John Smith is one of my children, for whom I make no provision.”

Mistake: Including end-of-life or ­funerary preferences. Would you want to be removed from life support if you were in an irreversible coma? Would you rather be buried or cremated after you die? It’s important that your heirs know these things—but your will is not the place to tell them. Wills often are not consulted until several days after the death, at which point it’s too late for your heirs to follow these directions.

Moreover, your will has no legal standing until you die, so your health-care providers and heirs would not be bound to follow end-of-life medical guidance in your will even if they did know about it.

Better: The proper estate-­planning document for detailing end-of-life medical care and funerary preferences is a living will. (Rocket Lawyer and ­LegalZoom offer DIY living-will ­creation tools.)

Mistake: Setting conditions for inheritances. Maybe you want one of your children or grandchildren to receive a portion of your estate only if he/she stays off drugs or gets married or graduates college. These aren’t uncommon desires. But who will monitor the situation and decide whether your conditions have been met? This often becomes more complex than people anticipate, creating uncertainty for your will’s executor and potentially leading to estate-draining lawsuits. Examples: If the condition you set is no drug use, is drug testing required or just a lack of drug-related arrests? Is marijuana use allowed in states where it’s legal? If the condition is a college degree, does an online or community college qualify? You can try to cover all the possible bases in a self-written will—but you won’t succeed.

Better: Conditional inheritances usually are more trouble than they’re worth, but if you feel that you must include one, it’s worth paying an estate-planning attorney to help you consider the potential complications and contingencies and draft a will that truly will do what you want.

Mistake: Leaving assets to pets. As far as the law is concerned, your pet cannot be an heir—it is (however much you may love it) simply personal property. If you do try to leave money or any other asset to a pet, the courts likely will ­allocate it to another of your beneficiaries instead.

Better: Leave your pet and money for its care to someone who will take good care of the animal and who has agreed to do so. If you want to formalize this arrangement to ensure that there are no misunderstandings, you could add a “pet protection agreement” or “pet trust” to your estate plan. (Rocket ­Lawyer and LegalZoom offer DIY documents for this.)

Mistake: Leaving significant assets directly to minors. If you do this, the court will appoint a guardian to look after the assets—and perhaps claim a fee from your estate—until the child turns 18 (or slightly older in some states). And upon that birthday, all of the assets instantly will fall under this heir’s control even if he/she is still too immature to handle the inheritance responsibly.

Better: Following instructions in a DIY will-creation tool, you could specify in your will that assets left to a minor should be placed in a Uniform Transfers to Minors Act (UTMA) ­account when you die. The assets would then be administered by a custodian of your choice whom you name in the will, such as a trusted family member, and the beneficiary would gain full control over them at or around age 21 (depending on your state). Note: UTMAs are not accepted in South Carolina.

If even age 21 is younger than you’d like for an heir to take control of an inheritance, you could instead leave the money to a trust that names the minor as a beneficiary. With a trust, you can grant control over the assets whenever you choose—but unlike with an UTMA, it’s generally worth hiring an attorney to set up a trust.

Mistake: Assuming that all of your ­assets will be distributed as dictated by your will. The beneficiary designations on certain accounts and assets, including 401(k)s, IRAs and life insurance policies, take precedence over the beneficiaries you name in your will. ­Example: A man removes his ­gambling-addict son from his will but fails to remove him from the beneficiary designation on his 401(k), accidentally handing over much of his savings to someone who is likely to lose it.

Better: Confirm that the beneficiary designations on your accounts and insurance policies distribute your assets according to your current wishes. There is no need to include these accounts and policies in your will.

Mistake: Failing to follow rules about required witnesses. Sometimes people who draft their own wills do a great job crafting the documents—then blow it when it comes to signing their names at the end. Depending on your state, either two or three people must witness you signing your will. In some states, your witnesses must witness each other signing as well and/or signing an affidavit in the presence of a notary. There are some crucial rules about who these witnesses can and can’t be, too—in most states they must be at least 18 years old and must be “disinterested,” meaning that they can’t be people who are named as beneficiaries in the will. If you fail to follow witnessing rules to the letter, your will could be ruled invalid.

Better: Read the witnessing rules provided with your DIY will carefully, and follow them precisely.

WHERE TO STORE YOUR WILL

If you pay a lawyer to draft a will, it likely will be stored in the lawyer’s office. But when people draft their own wills, they often store them either in bank deposit boxes or in their own homes—and both of those locations can cause problems. It might be difficult and time-consuming for your executor to gain access to your bank deposit box after you die. If you store the will in your home, he/she might struggle to find the document there…or one of your descendants could find your will before the executor, dislike how you divided up your assets and hide or destroy the document.

Better: If you store your will in your home, be sure to inform the will’s ­executor and several other trusted family members or friends where to find it, and don’t divulge the location to family members you do not completely trust.

Or for even greater security, file your will with your county’s probate court if this is allowed prior to death where you live, and let your heirs know that you have done so. If you do file your will with the court, you will have to refile if you later modify the will or move to a different county. Filing a will with the court makes it public record, so this is not the best option if keeping the will private is a priority.

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Source: Gregory S. DuPont, CFP, JD, managing partner of DuPont & ­Blumenstiel, an estate-planning, business and taxation law firm in Dublin, Ohio. He regularly reviews do-it-yourself wills for clients. DAndBLaw.com Date: February 1, 2019 Publication: Bottom Line Personal
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