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10 Common Mistakes When Drafting a Will

By Christopher Coble, Esq. | Last updated on

This post was updated on March 24, 2022

Making a will can be intimidating. Aside from having to think about death, trying to craft a legal document that accomplishes everything you want can be a daunting task. For executors, lawyers, and judges, interpreting a will without the help of the person who drafted it is a notoriously tricky practice, so getting it right is essential.

With so many ways to get it wrong, how do you ensure you have a valid will that properly takes care of your estate? Be sure to avoid these common mistakes when you draft your will.

1. Writing It by Hand

Yes, you can write a will by hand, but you probably shouldn't. While some states recognize handwritten (or "holographic") wills, laws may limit what these will can bequeath or how you can revise it. You're better off having a type-written will (perhaps using this sample form) signed by two witnesses if you want to guarantee the will is valid. You can also use an online platform like FindLaw Legal Forms & Services to create a will online that complies with your state's laws.

2. Not Knowing State Law

State laws for wills can vary, and each state has its own rules on validity, construction, and interpretation. Just because a will is legal in one state does not mean it is legal in another. Knowing the ins and outs of state statutes on wills is essential if you want a will that successfully carries out your wishes after death.

3. Including Things You Shouldn't

The natural inclination is to list all of your possessions in your will. But there are things you shouldn't include in your will. You should leave out things like your funeral plans, life insurance and retirement plans, and jointly held property from your will. (And you should probably avoid any illegal gifts and requests as well.)

4. Not Including Your Business

One thing you should include in your will is your business, especially if you are a sole proprietor. Whether you plan to keep a business in the family through a trust, or you want the company sold upon your death, your should address your business interests in your will.

5. Not Creating a Living Will

While your will takes care of your assets after you die, a different type of will can also take care of you while you are alive. A living will is a legal document that sets out how you want to be cared for in case of a medical emergency or if you are unable to communicate your wishes to a doctor. A living will covers topics like resuscitation, desired quality of life, and end-of-life treatments. It can also include any treatments you don't wish to receive.

6. Not Making Revisions

Just because your will is drafted doesn't mean it's done. Life circumstances can change, and you may need to revise your will. Marriage, divorce, children, business acquisitions, and asset sales can all affect the terms of a will, so make sure that your will accounts for any major life changes that will affect what happens to your estate after death.

7. Leaving Everything in the Will

Just because you want to leave things to your heirs and beneficiaries doesn't mean you have to do it through a will, and you don't have to wait until you die. Giving gifts while you're alive can mean avoiding a big estate tax hit in death. The IRS allows gifts of up to $13,000 a year per individual to go untaxed. So not only does the recipient save the tax hit on the gift today, it avoids estate taxes later.

8. Not Understanding the Tax Code

Speaking of estate taxes, they can be some of the most confusing of an already complex set of statutes. Estate tax law is difficult even for the experts, and, like wills laws, estate taxes can vary by state. It may take an expert eye to make sure you're not burdening your beneficiaries when you're just trying to bestow a gift.

9. Waiting Too Late

You're never too young to write a will, as long as you're over 18 when you draft it. Planning for your death while you're still in the prime of your life may feel unwarranted or uncomfortable, but dying without a will is worse. That will leave a court in charge of distributing your assets — a process that can be lengthy and expensive for your loved ones.

10. Writing It Yourself

There's no law saying you can't write your own will. In fact, for people with smaller estates, it may be easier to use a DIY solution like FindLaw Legal Forms & Services. However, if you would like to use more complex trusts or need to minimize a potential estate tax bill, then it may be better to call in a professional.

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