Or to fix on your existing will…

Your will is the legal document that outlines your wishes when you pass away. You decide on your beneficiaries, those persons or entities that will receive your property upon your death, and you name an executor, a person, persons, or financial institution with trust powers to follow your will, safeguard your property, pay your final bills, and then sell or distribute your assets according to your plan in your will. There are 10 mistakes we often see with wills.

Common Mistake No. 1

Your will is not self-proving. What does this mean? If your will has two disinterested witnesses and is notarized, the original can be admitted to probate in the local courthouse without anything additional being done. If both requirements are not met, your executor will need sworn statements from two people who are familiar with your signature and attest that it is your signature.

Common Mistake No. 2

You have not listed any backups if one or all your intended beneficiaries predecease you or disclaim their inheritance. This mistake may result in someone getting more than you want them to receive, or the Pennsylvania intestacy laws determining who gets your assets. The same applies to failing to name a successor or alternate executor or trustee of a trust that is established under your will.

Common Mistake No. 3

There is no provision made for minor beneficiaries. A beneficiary must be 18 years of age to inherit directly in Pennsylvania. There are ways under the Pennsylvania Uniform Transfer to Minors Act (PUTMA) to leave your estate to a minor beneficiary, but if you fail to use those vehicles, the money you are leaving to your underage grandchild may be managed by your child’s former spouse, who is the parent of that underage grandchild.

Common Mistake No. 4

If you make an outright bequest to a beneficiary with special needs who is receiving benefits under a government program such as SSI or Medicaid, there will be an unintended consequence of that person losing their benefits. The inheritance may be less than the loss of government benefits. There are ways to draft your will so that you do not create problems for someone with special needs.

Common Mistake No. 5

Failing to put adequate or appropriate controls over assets that pay to beneficiaries with various issues is a common issue. Know your beneficiaries and be candid about their limitations, if any. Do they have gambling issues, drug or alcohol addiction, spending or creditor problems, or marital issues? If so, review smart options for distributing your estate.

Common Mistake No. 6

If you have beneficiary driven assets or joint assets that pass outside of your will (non-probate assets), it is important to make sure that those assets are coordinated consistent with your overall estate plan. You may want the assets passing under your will (probate assets) to go to the same individuals with the same percentages as your non-probate assets. If you do not want them to go in the same manner, those reasons for the difference should be communicated to your attorney or trusted advisor to defend a possible will contest after you are gone.

Common Mistake No. 7

The failure to address second marriage or subsequent relationship considerations is a frequent mistake. What if you update your will to give everything to your second spouse or your subsequent partner who is someone other than the parent of your children? If you die first, then there is no guarantee that your children from a prior marriage or relationship receive anything. Another impact might be real estate that has been in the family for years or is in trust. If you pass away first, can the current spouse or significant reside there, and under what conditions?

Common Mistake No. 8

If you want to disinherit a child in your will, it is important to address that in your will. For example, if you have three children and you only list two in your will, when you die, your executor must give that third child notice of your death. If your will doesn’t have language like “I realize that I have not made any provisions for my third child, and it is my specific intention to do so,” the third child has a better argument that the person who wrote the will made a mistake.

Common Mistake No. 9

The failure to discuss the tax consequences of assets passing at your death is a mistake. Pennsylvania has inheritance tax in rates ranging from 0% to 15% of the date of death value. There may be income tax to beneficiaries on certain assets. Most onerous is the federal estate tax, currently at 40% for the few with estates more than $13.99 million. Death taxes for Pennsylvania residents need to be discussed and addressed considering the types of assets being passed to beneficiaries at death.

Common Mistake No. 10

It is particularly important to review your will regularly. If you or one of your beneficiaries has a life change, such as health, a death, disability, divorce, large inheritance, or lottery win, to name a few changes, you need a review. If you have experienced no life changes, every three to five years is a good time to review.

What if you made one or a few of these mistakes? Is your will going to be contested? Can anyone challenge a will? An interested person can contest, and the court needs to find they have the legal capacity, or standing, to challenge before the merits of the challenge are addressed. Typical challenges are that you, the testator, did not have the requisite mental capacity or that another individual unduly influenced you. We are happy to help you avoid these common mistakes and minimize future challenges.