You fix your plumbing. You perform your vehicle maintenance. You might even self-diagnose on the web versus visiting a doctor when you’re feeling unwell. While there are some things you could do yourself, legal paperwork is not one of them.
You might find yourself tempted to write your will and have it notarized – and assume that you’ve covered your ground. In reality, you may leave huge gaps in your asset protection and miss critical components of a solid estate plan, which puts you and your loved ones at risk.
Are Self-Made Wills Even Recognized by the Courts?
Yes, a self-made will is legal as long as you meet all of the state requirements at the time you draft it and if you have it notarized. The state requires two witnesses who are of legal age, yourself, and a notary present at the time it is notarized.
While legal, it doesn’t mean it is adequate.
The Real Problems with Self-Made Wills to Know
Whether you draft it from scratch yourself or you plan to use a do-it-yourself online service, you must know the issues with these self-made wills and how they affect not only your life, but the lives of loved ones if you were to pass away.
Assets Are Rarely Described Accurately (If at All)
When you create your will, you might not give the correct legal description for your assets or you may accidentally leave a few out. Likewise, you may reorganize assets, but forget to update your will addressing those changes. When you have beneficiaries assigned to non-existent assets, they will not receive any inheritance other than what was gifted to them – which may be nothing if you do not update your will.
If you do not list assets clearly, your executor may be unable to locate that asset or identify what it is. Not only does this open the door to a contest in court, but the probate court will have to decide what you may have meant in your will – meaning they will guess on your behalf.
Beneficiaries Are Not Identified Correctly
Another common error in self-made wills is that beneficiaries are not described clearly or within a group along with the date, such as saying “my grandchildren” as of a specific date. If you do not date it, then all grandchildren might apply. Likewise, if you were to leave assets to a charity but you do not provide the full, correct legal name, your executor may be unable to distribute assets to that charity.
You may also forget to list backup beneficiaries. Therefore, the court would decide using the most recent estate laws to determine how your assets will be distributed when a beneficiary is no longer alive.
Leaving Items to Pets
You might want to provide for a pet, but legally you cannot name that pet in your will and expect the law to allow it. Instead, you need to name a party who would handle your pet’s care, and that trusted party would then receive any assets you leave to use for their care. Some pet parents go as far as setting up a pet trust, which specifically addresses the nuances of leaving items to family pets after they pass away.
Putting Illegal Conditions on Distributions
You can put conditions in a will on how assets will be distributed, including how much a person will receive over time. However, this only works if you are clear and spell it out so that there is no room for interpretation or contest. Likewise, if your conditions are impractical or impossible to enforce, the court may dismiss them.
For example, demanding that a child lose weight before he or she can receive their inheritance is one that the court is unlikely to approve. This is because someone would have had to monitor that beneficiary and make sure they lost their weight before assets were distributed. This means paying an executor an outrageous amount of fees for an extended period, which may even drain estate funds entirely.
Ignoring End-of-Life Care and Heroic Measures
One of the most important parts of creating a will is also naming a party who will make financial and healthcare decisions on your behalf if you become too ill or incapacitated. Without this designation, the courts would first appoint a party to make those decisions, and the party they select may not be the one you would have chosen yourself.
Forgetting about Care Instructions for Minor Children
Legally, you cannot leave assets to a child under the age of 18. Therefore, you must appoint a guardian to care for your underage children and put them in control of those assets. Likewise, you need a backup guardian in case the guardian you select can no longer care for your young children at the time they are requested. Without a backup guardian, the court must appoint one for your minor children and it could be a party you would not have wanted to raise your children.
Forgetting Past Beneficiary Designations
Another critical error common in self-made wills is beneficiaries and failing to coordinate them with beneficiary designations. When you create retirement accounts, stocks, and even bank accounts, you often are told to designate a beneficiary. The party you name then receives anything in those accounts upon your death.
In your will, you may designate the same party, but in some cases, you could name a different party. While you intended for the person in your will to receive that asset, beneficiary designation forms trump wills; therefore, someone that you named initially when you opened the account could receive your assets.
Hiring an Estate Planning Attorney Offers the Best Protection
If you want an estate plan that truly thinks of everything, and if you want to avoid the common pitfalls of a DIY estate plan, speak with an attorney. An estate planning attorney knows the latest laws and how they will impact your will, and they can make sure that these common errors do not affect you and your loved ones when you need your will the most.
To get started, schedule a free consultation with the Law Office of Andrew M. Lamkin, P.C. today. You can schedule your appointment by calling 516-605-0625 or requesting more information online.
Andrew Lamkin is principal in the law firm of Andrew M. Lamkin, P.C., where he focuses his practice in the areas of elder law, estate planning and special needs planning, including Wills and Trusts, Medicaid planning, estate administration and residential real estate transactions. He is admitted to practice law in New York and New Jersey.
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