7 essential legal considerations when creating a will: avoiding common pitfalls

Navigating the complexities of estate planning can seem daunting, but armed with insights from seasoned legal experts, this guide outlines the essential steps to take when creating a will. From understanding how to sidestep probate to ensuring your wishes are unequivocally expressed, each section is informed by professional experience. Discover the crucial strategies that can safeguard your legacy and provide peace of mind for the future.

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  • Avoid Probate with a Living Trust
  • Meet State Statutory Requirements
  • Balance Assets for Blended Families
  • Ensure Clarity in Beneficiary Designations
  • Pick Your Witnesses Carefully
  • Ensure Testator is of Sound Mind
  • Make Will Digitally Accessible

Avoid Probate with a Living Trust

One critical legal aspect to consider when creating a will is the potential impact of probate and how you can structure your will to avoid it. As someone who has spent 40 years managing legal practices, including handling numerous estate planning cases, I’ve seen the benefits of bypassing this often lengthy and costly process. By using strategies such as establishing a living trust, you can ensure that asset distribution is both swift and private, keeping your financial affairs from becoming public record.

A common and easily avoidable mistake is neglecting to seek professional legal assistance when drafting your will. Many assume they can handle it themselves, but I’ve witnessed cases where DIY wills led to invalid documents due to missing signatures or improper language. These errors can result in long, expensive court battles. To prevent such outcomes, always consult with an experienced estate planning attorney to guarantee that your will is legally sound and truly reflects your wishes.

David Fritch, Attorney, Fritch Law Office

Meet State Statutory Requirements

A key legal aspect to consider when creating a will is ensuring it meets the statutory requirements of your state, such as being signed in the presence of witnesses. This might sound basic, but it’s a frequent point of failure.

A common mistake that can be easily avoided is not updating the will after major life events like marriage, divorce, or the birth of a child. I’ve seen families face unnecessary legal disputes because beneficiaries weren’t updated in the will.

For instance, I encountered a client who, despite a successful career, had not updated his will to reflect his second marriage. Upon his passing, this oversight led to prolonged family conflict over his estate. By regularly reviewing and updating your will, you can prevent such issues.

An actionable insight for readers is to create a calendar reminder to review your will every two to three years, or immediately following any significant life changes. This ensures your estate plans accurately reflect your current wishes and life circumstances.

Jonathan Feniak, General Counsel, LLC Attorney

Balance Assets for Blended Families

One crucial legal aspect to consider when creating a will is how your assets are distributed, especially if you have children from a previous marriage. You need to carefully balance providing for your current spouse while also ensuring your children from a prior marriage are adequately protected. A common pitfall is assuming that everything will automatically go to your current spouse, which might not be what you intend, particularly if you have significant assets acquired before the current marriage. Clearly outlining how your estate will be divided can prevent future conflict and potential legal challenges from your children or other beneficiaries. It’s essential to consider things like trusts, specific bequests, and how blended families are addressed.

A very common and easily avoidable mistake I see is not updating your will after a divorce. Your ex-spouse is likely named as a beneficiary or executor in your old will, and unless you specifically change it, they could still inherit your assets or even have a say in administering your estate. This is a huge oversight that can have devastating consequences. As soon as your divorce is finalized, you must review and update your will to reflect your new circumstances. This includes not only changing beneficiaries but also potentially updating guardianship arrangements for any minor children. It’s a simple step that can save your loved ones a lot of heartache and legal complications down the line.

Mark Childress, Attorney, Law Offices of Mark M. Childress, PLLC

Ensure Clarity in Beneficiary Designations

One of the most important legal aspects to consider when creating a will is ensuring absolute clarity in beneficiary designations. Many people assume that naming a beneficiary is as simple as listing a name, but vague or inconsistent wording can lead to disputes, misinterpretation, and even legal challenges. This becomes particularly complex when beneficiaries have similar names, informal titles, or when assets are intended to be split among multiple parties. If a will lacks precise language on who receives what and under what conditions, the executor may struggle to distribute assets fairly, leading to unnecessary legal battles.

A common mistake people make is failing to update their will after major life events. Many assume that once a will is created, it remains legally sound indefinitely. However, marriages, divorces, births, and even the passing of a previously named beneficiary can create unintended consequences if the document is not reviewed and amended. An outdated will may still list an ex-spouse as a beneficiary or fail to account for newly acquired assets, leaving loved ones in difficult legal situations. Regularly reviewing and updating a will ensures that intentions remain legally valid and aligned with current family and financial circumstances, avoiding unnecessary complications for those left behind.

Oliver Morrisey, Owner, Director, Empower Wills & Estate Lawyers

Pick Your Witnesses Carefully

Think about how you’re signing it. Most states want you to have at least two witnesses there when you sign. If those witnesses are actually getting something from your will, it can mess things up. So, you have to pick your witnesses carefully.

Not being specific about assets is the biggest mistake and almost everyone does it. Contrary to how many people think a will works, you can’t just say vague things like, “I leave everything I own to my wife.” You need to account for everything you own, all the items, all the assets, everything. That way, everyone knows exactly what you meant, and it keeps the peace among your loved ones.

Riley Beam, Managing Attorney, Douglas R. Beam, P.A.

Ensure Testator is of Sound Mind

When you’re creating a will, the person making the will (the testator) must be of sound mind. If you’re creating your own will well ahead of time, then this likely won’t be an issue. But it’s something to consider when helping elderly family members create their will. They have to understand that they are signing a document that will distribute their assets upon their death and free from influence from anyone else.

The most common mistake people make is not updating their will after major life events. Marriage, divorce, birth, adoption, and significant changes in assets can and will impact your wishes. Failing to update your will can lead to unintended consequences and potential family disputes. Clearly identify your beneficiaries and update them as needed when major life events occur.

Anna Blood, Founder and Managing Attorney, Blood Law PLLC

Make Will Digitally Accessible

Make sure it’s digitally accessible but still secure. Most of us are managing our lives online and it’s becoming more common now to store important documents in digital vaults or with online estate planning services. But you’ve got to make sure those platforms are legit and that your executor knows how to access them. A will locked away in a password-protected account doesn’t help anyone if no one can find it or get into it. So, think digital, but also think practical.

As for common mistakes, it’s usually that people stop updating their will after a certain point. So it doesn’t accurately reflect who gets what. Someone gets divorced, remarries, has kids, or even moves to a different state, and they just forget to update their will. And then it’s a mess because you have disputes. That often means going to probate court.

Alex Freeburg, Owner, Freeburg Law

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