The last Will and testament answers the question, ‘When I pass on, where will my belongings go?’ If you don’t draft a will, someone else is going to make those decisions for you. However, just writing a will isn’t enough. In order to protect your final wishes, safeguard your assets, take care of loved ones, and prevent any family disputes, you need to make sure that your Will does not have any mistakes and that it is legally sound.
There are several ways you can obtain a will. Some people prefer DIY wills. There are even DIY will kits online nowadays. Some people can also approach qualified professionals and banks to get will-drafting services. It doesn’t really matter how a will is done and who does it. What matters is that the will properly represents your wishes.
It is important to note that no matter how a will is drafted, and who drafts it, mistakes can be made in the process. Some of these mistakes can cause chaos when you die. Below are some mistakes that you should avoid when writing a will.
Listing items that should not be included in a last will.
While there’s no doubt that drafting a will is a smart choice, not all of your property can or should be part of your last Will and testament. It is important to make sure that you’re including and excluding the correct assets. Property that should not be included in your Will includes any type that is already subject to laws regarding its distribution when you die. Some of the most common types of such property may include the following:
Property that is held with a right of survivorship: Community property that is held with the right of survivorship and property that is held in joint tenancy or tenancy. This kind of property will pass automatically to the co-owner when you die. It is therefore unwise to include such items in your Will because nothing you write can change that.
Property held in a living trust: A living trust can be set up to facilitate the transfer of property or wealth upon the grantor’s death and to avoid probate. Accordingly, the beneficiaries of a living trust will automatically receive any of the property held by the trust when the grantor dies. While it is possible to change the terms of a revocable trust during your lifetime by amending the documents involved, it is not possible to do so through a will. It would be a mistake to include such property in a will.
Life insurance or annuity proceeds: The beneficiary who is named on a life insurance or annuity policy will automatically receive the proceeds when you die.
Proceeds from retirement plans, pensions, IRAs, and 401(k)s: As with life insurance proceeds, these proceeds pass directly to the beneficiary who is named on the forms.
Pay-on-death bank accounts: Any money that is kept in a pay-on-death bank account will automatically go to the beneficiary listed.
Transfer-on-death (TOD) property: These can be stocks, real estate, bonds, and vehicles. When the original owner dies, these items will be automatically passed to the named beneficiary.
It is important to not include any of the items listed above in a last will and testament. They should be considered as already distributed; hence, in essence, they are not yours to give away or allocate.
What to Include in Will
You might be wondering, then, with all the property listed above that must not be included in your Will, what should be included? The simple answer is everything else. You can include any real or personal property that is not meant to pass automatically to a beneficiary when you die.
The best way to ensure that you do not forget anything is to simply sit down and list all of your belongings and the corresponding people you would like to give after your death.
Listing all your assets.
It would be a mistake to list all of your present assets in a last will and testament. The reason is pretty simple. You might not have all of your belongings when you eventually die. Unless you have a terminal illness, there’s no way of knowing whether you will have everything that you own at the moment when you die.
It is a good idea to keep a list of items that you own together with your Will. Unlike the Will, this list can be amended any time as your assets change. It is, however, not wise to include everything that you own in your Will. The only assets that have to be allocated are those that you know will not change or be lost over time. After listing these assets, everything else can be listed in general terms. You can use general terms like, “I leave everything to my spouse”, or “divided the remainder equally between all my children”.
It will then be up to your Executor to sum up all the remaining assets when you die and distribute them according to how you would have described.
Failure to name a residual beneficiary.
When drafting a do-it-yourself will, there are many omissions that can be made. One of them is failing to name a residual beneficiary. A residual beneficiary is a key component of any lasting will and testament and failure to name one can even render the document ineffective. A residuary beneficiary is a beneficiary who is given a percentage of what’s left in the estate when all debts and expenses have been settled. They are called the residual beneficiary because they get the residue of the estate. It is good practice to take note of such important pieces of information when drafting a DIY will.
A good practice when drafting a do-it-yourself will be to leave specific percentages of the estate to legacy beneficiaries (i.e. 70% to my daughter, 15% to my niece and 15% to my son) then name an individual who will get everything that will be left. One mind wonder where the residual items will come from. You should keep in mind that there are some items whose value cannot be calculated and might be difficult to share among the legacy beneficiaries.
This is one of the most common dangers of a do-it-yourself Will. Not naming a residual beneficiary can create problems and quarrels between your loved ones when you die.
The residuary beneficiary will receive property that:
- You overlooked when you made your Will
- Was acquired after you made your Will, and
- Does not go to the person who was named to get it in a specific bequest. This might be because that person died before you, and for some reason, you did not remove them from your Will or name an alternate beneficiary. It might also happen that you name an alternate beneficiary, and they also failed to survive you.
You can see how such unforeseen circumstances would create a need for a residual beneficiary. It is therefore important when drafting a do-it-yourself will to include one.
You did not consider alternate scenarios.
When preparing a do-it-yourself will, this is one of the trickiest issues to tackle. There are several tricky scenarios that can render your DIY will very complicated or sometimes invalid.
When one is drafting a will, they generally expect events to unfold in a certain order. They then write their last Will based on the assumed order. If they don’t take time to consider that events might occur in a different order things might be tricky. You could write your Will and leave all your belongings to your children and even name a residual beneficiary. What you might not consider is that it is possible that you might outlive both your legacy and residual beneficiaries. You should therefore not make the mistake of not including what should be done in the case that what you considered when you drafted your DIY will did not take place.
The acceptable alternative scenarios for DIY Will must be those that are more likely to occur than the worst-case scenario. For many individuals, alternate scenarios are quite easy to think through. “If something happens to me, then everything will go to my spouse, and if we both die at the same time, then everything should be divided equally among our children”.
Complications arise when your family does not follow the conventional structure. Some couples might not have children, and they will have to think hard about what should be done in case they all pass way at the same time. This makes preparing a DIY will quite a difficult task for them. Some people might want to leave everything to their spouse, and create mirror Wills that name each spouse as the main beneficiary. With no children of their own, the alternate scenario may involve nieces and nephews. Each partner might also name their own extended family to share the estate equally in the event that something happens to both of them. Further complications arise when one nephew is unable to receive their share. Who would then receive their share?
While there might be unlikely scenarios, any well written do it yourself Will must consider every possible scenario of individuals dying in different sequences. This may be a little challenging for some people when drafting a do-it-yourself Will. In such instances, consulting a professional might be the best option available. There is a greater chance that they might have dealt with a similar situation before.
Failure to sign your DIY will correctly.
This is undoubtedly the most common error that can be encountered when writing a DIY will. When drafting a will, the testator is required to sign at the bottom of each page. When witnesses are involved, they each need to sign at the bottom of the last page. It is however recommended that witnesses also sign at the bottom of each page. Failure to sign the DIY Will properly can result in the document being invalidated. This is because it won’t be in compliance with the Wills Act.
Not sticking to the law.
Another mistake that can arise from a do-it-yourself will, or a DIY will kit is the failure to comply with the regulations of the Wills Act. If the formalities of this act are not complied with, the Will can be regarded as invalid. This can happen even though the terms of the DIY Will are legally acceptable. When the Will is rendered invalid, it is possible to apply to a court and order the Master of the High Court to accept and make the document valid. It is important to note that this is a costly exercise, and it will delay the finalisation of the estate.
Making such mistakes can result in certain beneficiaries who are nominated in the will be disqualified from receiving any benefit.
This might be because one of the beneficiaries signed as a witness or drafted the Will on behalf of the testator. In the case that a beneficiary does one or both of these, neither she/he nor their spouse will be entitled to inherit. The beneficiary who would have been disqualified can apply to court but at a price. This can reduce the inheritance and cause delays in the administration process.