When a person dies, their estate will have to go through probate, which involves paying off debts to creditors, filing taxes, and distributing assets according to the deceased’s last will and testament. This can be an arduous process for a family, which is why making clear plans for your estate is one of the kindest things you can do for your loved ones. Small errors in a will or trust, however, can create large problems later. A probate court must work from the documents in front of it, even when family members are certain that something different was intended.
Most of these errors are preventable. An estate planning attorney can explain how the law in a particular state treats wills, trusts, and beneficiary designations. An attorney can also flag language that might confuse an executor or invite a challenge from a disappointed relative. The four mistakes below show up again and again in contested estates.
Vague Terms in a Will or Trust Can Lead to Disputes
In general, it helps to be as specific as possible when describing how you want to set aside assets for your loved ones. A will that leaves “my personal belongings” to one child and “everything else” to another invites an argument over where jewelry, tools, artwork, and family heirlooms belong. Similarly, instructions to divide property “fairly” or “as my children see fit” give no real guidance at all.
When relatives disagree, probate can stall while a judge sorts out the intent behind the deceased person’s written word. Clear drafting of a will can solve most of these issues. Property can be described in a way that survives changes, and personal items can be handled through a separate written list where state law allows one. An attorney can also help you add instructions for what will happen if a beneficiary dies first, which can remove another common source of conflict.
Lost or Missing Estate Planning Documents Create Confusion for Beneficiaries
A will is only effective if it can be located after your passing. Many states expect the original signed document to be filed with the probate court, not a photocopy or a scan. When the original cannot be located, some courts presume that the person destroyed it on purpose and intended to revoke it. Overcoming that presumption takes time, testimony, and legal expense, and the outcome is never certain.
Storage choices can contribute to the problem. Documents left in a home office can be discarded during a cleanout or lost after a move. A safe deposit box can be difficult for a family to open without a court order. Even a well-organized plan fails when nobody knows it exists.
Trusts raise a related issue. A trust document can survive while the paperwork that moved property into the trust may go missing. Deeds, account transfer forms, and assignment records must all show what the trust actually owns. Without them, assets intended to pass outside probate may end up inside it.
The practical fix is simple. The executor or successor trustee should know the location of the original documents and should have the contact information for the attorney who prepared them. A written inventory of accounts, insurance policies, deeds, and digital assets can spare your family a long search during a painful period.
Improper Execution Can Jeopardize a Will
A will must be signed and witnessed the way state law requires. The requirements are not the same everywhere. Most states call for two adult witnesses who observe the signing. Some states recognize handwritten wills under narrow conditions, while others reject them outright. A document that reflects a person’s wishes perfectly can still be denied admission to probate over a signing defect.
The choice of witnesses can also lead to problems. In several states, a gift to a person who served as a witness can be reduced or voided, even though the rest of the will may stand. Family members and beneficiaries are often the closest people at hand, which makes this an easy mistake to make. Working with neutral witnesses can help avoid this issue entirely.
Notarization is frequently misunderstood. A notary generally does not take the place of witnesses. What a notary can do in many states is complete a self-proving affidavit, a sworn statement that is signed at the same time as the will. That affidavit allows the court to accept the will without tracking down the witnesses years later.
Online forms and do-it-yourself kits contribute to many of these failures. A template may be sound, but the signing instructions are often generic, and they may not reflect the rules of your home state. Supervised execution removes that risk.
Issues With Outdated Estate Planning Documents
If you have not reviewed your estate plan in a long time, it never hurts to review it again to make sure it is up to date with your current circumstances. A plan that sat untouched for 20 years may name a former spouse as a beneficiary, address property that was sold long ago, or appoint an executor who has since died or become unable to serve. Several events may prompt a review of your estate plan, including:
- Marriage, divorce, or the death of a spouse
- The birth or adoption of a child or grandchild
- A move to another state with different execution and property rules
- The sale or purchase of a home, business, or other significant asset
- A serious change in the health of the person named as executor, trustee, or agent
A review every three to five years, along with a review after any major life event, can help ensure that your plan is current. An estate planning attorney can compare your existing documents against your present circumstances and recommend an amendment, a codicil, or a new set of documents. Addressing these issues during life costs far less than resolving them in probate court.
Disclaimer: This article is for general informational purposes only and does not constitute legal advice or create an attorney-client relationship. Estate planning and probate laws vary by jurisdiction. Readers should consult a qualified estate planning attorney regarding their individual circumstances.
