Your last will and testament is one of the most important legal documents that you will ever make. It allows you to direct where you want your property, guardianship and debts to go after you die, and allows you to appoint an executor to act out your wishes.
But too many Americans don’t have a will right now. According to a Caring.com survey of 2,500 Americans in 2020, two out of three adults don’t have a will despite the pandemic. Procrastination and the belief that they don’t have enough assets to leave someone were the top reasons people gave for not having made one.
Eido Walny, founder of Walny Legal Group, an estate planning and asset protection law firm based in Milwaukee, said the lack of a will is a common tragic mistake he sees clients make.
“The fact of the matter is that almost everyone over the age of 18 needs some estate planning documents,” he said. “It may not be anything fancy, but having documents can spare your family a lot of financial and emotional suffering at a time that may already be trying.”
Beyond not making a will at all, here are the biggest mistakes estate planning attorneys see clients make. Some answers were edited for clarity and length.
1. You assign co-executors.
“You should definitely just have one [executor]. One is best and then have alternate executors. A lot of testators think in fairness, they want to make all of their children responsible for administering the estate, and it’s a really bad idea. A lot of arguments. You have to have everybody agree on something.
“If you have a house and you want to sell the estate assets, obviously some kids will be like, ‘No, it should remain in the family. I don’t want to sell. How much should it sell for?’ Whether you should prep the the house before it sells. Little disagreements that inevitably turn into family in-fighting and there are going to be two sides and two factions. Not everybody gets along and all those things come out.
“I had a family that had seven [children who were] co-executors. It was a disaster. Everybody should get their own attorney at that point because of conflicts of interest. They didn’t want to do that because it’s seven times the legal fees. Can you imagine having seven attorneys trying to communicate on one thing? It becomes very costly.
“To avoid that cost, I made everybody sign waivers. I made them aware that there might be conflicts of interest later that we don’t anticipate now. Let’s say one person wants to purchase the house, or one person does all the work, other people don’t do anything and everybody gets commission. It’s a sore spot. Things that happen during the administration of their [loved one’s] estate are the things that happen throughout their lifetime that are repeating themselves.” — Alice Choi, estate planning attorney at Novick & Associates in New York City and Huntington, New York
″[The issue that comes up with too many executors,] if you have two, and they don’t agree, who gets the final say? If you are going to choose more than one, make it an odd number so it’s majority-rule. Some people are like, ‘I want all of my kids,’ and they have four children. Then it can be two against two, and then what happens?
“Although the will says what is supposed to be done — it’s the instructions — it does not guarantee that everything is going to run as smoothly as we would hope.” — Carmen Rosas, an estate planning attorney based in San Mateo, California
2. You believe that a will is all you need to avoid loved ones going to court.
“Believing that a will alone will avoid the probate process [is the biggest mistake]. Probate is the legal process of administering a person’s estate both when they die intestate, [meaning] without a will, and when they die with one, [which is known as] proving the will. Although a valid will can ultimately direct where assets are allocated, it will likely not avoid the probate process if there are assets titled solely in your name.
“If you have a will in place, but an account (bank account, investment account, etc.) that does not have a beneficiary designation, i.e., it is solely in your name, the assets would likely have to go through the probate process before being distributed according to the terms of your will.
“I recently had a client come to me with her father’s will that directed the distribution of his estate evenly amongst his three children. She believed that the administration would be relatively straightforward.
“However, her father’s residence was titled solely in his name — was not in a trust and did not have a Transfer On Death designation, which some states allow — so probate had to be opened in order to transfer title of the residence to the beneficiaries. In Wisconsin, designating a TOD beneficiary on a deed is about $30, but with probate, the cost to the client to go through probate ended up being about $4,000.” — David Watson, an estate planning attorney based in Mequon, Wisconsin
3. You’re too vague about items with sentimental value.
“Sometimes people are like, ‘To all my kids, an equal share.’ But that doesn’t necessarily leave the option available for kids to say, ‘I want to buy this property’ or ‘I want this specific item.’
“They are like, ‘My kids will figure things out, they all get along.’ When people pass away, relationships change. Money can change people. Your children that got along so well when you were alive may not get along as well when you are gone and not there to dictate who’s right, who’s wrong or be the mediator between them all.
“If you are too general, it will be based on interpretation, and if people interpret it differently, then you are in trouble. I’ll give an example. My grandmother had this gorgeous painting and when she passed away, I was like ‘Oh my gosh, I love this painting.’ We didn’t fight over it, but my aunt was like, ‘I really want it,’ and then one of my cousins wanted it. I jokingly said to my aunt, ‘Well, when you pass away, put it in your will that I get this painting.’ Luckily we were able to hash it out. My aunt being the next in line, she got it before the grandkids.
“If there is something that has lots of sentimental value, that’s the thing people fight about the most. They’ll say it’s money, but it’s really more sentimental things. People are processing their emotions with those sentimental things. If they regret not spending more time with somebody, they want all of the things, or every single memory or picture that they can get their hands on.
“If you know somebody wants something, just put it down. It will make it so much easier.” — Rosas
4. You don’t update your will to reflect life changes.
“The biggest mistake people have when it comes to doing wills or estate plans is their failure to update those documents. There are certain life events that require the documents to be updated, such as marriage, divorce, births of children. It’s typically recommended that your estate plan be revisited every five to seven years.
“For a lot of people, once it’s done, they tend not to think about it. When you do a will, make the time to update it because there’s certain life events that may change your overall estate plans.
“Let’s say you name your children, and one of your children passes, but the way you had your will structured didn’t account for your grandchildren. So, in essence, your grandchildren were not included in the will because their parent passed, and that was not your intention.”— Dionna Reynolds, an estate planning attorney based in Orland Park, Illinois
5. You don’t think through whether the gift you leave someone will actually help them at the time of your passing.
“The biggest mistake people make with doing their will or estate plan is simply not doing anything and having no documents at all. For those people who have documents, the next biggest mistake people make is to let the documents get stale.
“The next big mistake we see people make is to not carefully consider the consequences of the bequests that they make. Yes, leaving people money is an empowering thing. But sometimes those same bequests can cause a lot of problems for the person receiving the gift. When leaving money to children, some consideration should be given to the child’s maturity and place in life. An 18-year-old may be a legal adult, but is probably not in a good place in life to receive an inheritance, even a relatively modest one.
“Additionally, receiving gifts outright might disqualify a college-aged person from financial aid. For those beneficiaries in their midlife, some consideration should be given to the risk of divorce, creditors or vices such as substance abuse or gambling addiction. In each of those cases, the inheritance you may have intended to benefit a friend or family member could wind up in the hands of someone else and not help your loved one at all — and maybe even hurt them.
“For older beneficiaries, thought should be given to whether that person may be in a good mental state to receive gifts and whether that person may be disqualified from Medicaid Title XIX assistance as a result of an inheritance.” — Eido Walny, founder of Walny Legal Group, an estate planning and asset protection law firm based in Milwaukee
6. You don’t leave instructions about where to find your will.
“I had a client who came in and they were like, ‘We have drafts that they created this, but we don’t have evidence or proof to show they actually signed the documents.’ If you are very clear, if you are very specific, people know where to find your important documents. It makes it easier on your loved ones.
“I’m in a forum where there are estate planning attorneys who are like, ’Did anybody do a will for this person? Did anybody create an estate plan for this person? They are located in this city, this state. We are looking for documents we think exist but aren’t exactly sure.′ Then it’s the process of finding out: Do they even have a will?
“I always tell my clients, ‘Put your originals in a safe place. Make sure you tell somebody where those documents are. Or at minimum, give them your attorney’s contact info.’ So if something happens, they can call our office.
“[In that case of that client, the will wasn’t found.] We had to start over.” — Rosas
7. You don’t work with someone who actually understands estate law.
“There may also be a temptation to work with a lawyer who is not a specialist in this area because someone’s cousin, who normally does litigation, is willing to help you out, or your divorce attorney thinks they can pull a will together for you at a reasonable fee. Don’t fall into those traps.
“Estate planning is complicated and there are a lot of traps for the unwary, even unwary attorneys. Find someone who is a specialist, who knows how to navigate issues, and who you feel comfortable with. The National Association of Estate Planners and Councils is a great resource if you need a vetted referral.
“It’s important to get these documents right because when the chips are down and the documents are executed, the difference between a good set of documents and not can mean a lot of extra time, money and heartache. Don’t skimp in the short term in exchange for problems in the long term.” — Walny