Mistakes, Errors and Miscues.

I was going through the numbers the other day and I would venture to say that people who come in to see me about a will, maybe 40% of them already have one. The remaining 60%, also have a written will. The difference is that their will has been written for them by the State of Kansas and no one will like it but the attorney. To be candid, I’m the guy their going to pay to cleanup the mess when someone passes away without a will.

And just because you have a will doesn’t mean that there might not be a problem with it. So let me share with you some of the mistakes made with wills that I and my colleagues have observed over the years.

 

  • Not executing the will correctly.

 

A testator may sign a will by a mark or signature. There needs to be two witnesses to sign the will in the presence of the testator. You’d be surprised at the number of wills I see that have just one witness or no witnesses.

 

  • Not knowing if the testator of the will has the capacity to sign.

 

The testator has to understand the nature of the property he or she owns and who will inherit it at the time of the signing of the will. Even though a person has a cognitive impairment, they may still have capacity to sign a will if they know what their doing at the time of signing it.

 

  • Having a beneficiary sign as a witness.

 

I recommend that you have no family members witness your will even if they’re not going to inherit under it. If a witness is a beneficiary under a will, the inheritance of that beneficiary is considered void and he will not receive the inheritance.

 

  • Forgetting to have a self-proved will

 

If a will is not self-proved and has to be offered to probate, then the witnesses have to be found testify as to the validity of the will in order for it to be admitted to probate. I’ve had a couple probates where I had to hunt all over the country to find the witnesses.

 

  • Not revoking previous wills.

 

          You want to make sure that your will contains language revoking any previously executed wills so your heirs will not have a court battle on their hands as to which will is valid.

 

  • Thinking an old will still represents your wishes.

 

          Any number of events might cause you to change your will. Marriage, divorce, children an increase in wealth, moving out of state are some of the reasons to do so. I can’t say that there is a set rule of thumb but I advise my clients to review their wills every 2 to 3 years.

 

  • Choosing the wrong executor for your will.

 

          There is an element of trust involved here. I tell my clients that they know the players far better than I.  So be sure you choose a person who will implement your desires after you die. I would think you would want someone who is strong-willed to be able to follow your wishes.  Remember, everyone is a critic.

 

  • Not considering minor beneficiaries.

 

          You have to take into consideration whether or not you want a child to receive property outright under your will. Can a 16 year-old child really handle $100,000.00? Now that I think about it, what about a child, be a minor or not, having supplemental needs issues. You may have to work around that.

  • Not appointing guardians.

 

          If you are deceased, then who is going to raise your minor children? You better find someone who is willing and capable and have an in-depth conversation with them about your desires. It doesn’t hurt to designate successor guardians. And don’t be surprised if people turn you down. It happens.

 

  • Not having a will.

 

          I had a client for whom I drafted durable powers of attorney, living will, HIPAA authorization, and vial of life. He was adamant he didn’t need a will for he owned everything in joint tenancy with his wife. Guess what? He didn’t for he forgot about the 80 acres of farmland that he had inherited from his parents. It had to be probated and his wife only received a one-half interest. The other half went to their children.

 

          I think I have stated this before that there is no such thing as a simple will if you’re going to do it right in order to protect yourself and your loved ones.

 

Thanks and stay healthy.

 

Mike

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