What are Common Will Mistakes and How Do I Avoid Them?
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What are Common Will Mistakes and How Do I Avoid Them?

Are handwritten Wills valid? Do I need to update my Will? These are common questions and mistakes that can be made when creating a Will, but not to worry! FastWill’s here with a list of mistakes that can easily be avoided. Read to learn more.

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Mistake #1:  You didn’t sign and witness the document properly!

All 50 states have slightly different laws about how to formalize a will. Typically, the state requires you to have your will document “witnessed” by at least two people.  This sounds so simple, yet it happens to be the most common way that wills are declared invalid. 

What is the witness requirement? Does that mean you need two people to watch you sign and date the will? Or does it mean that you need to acknowledge the will when witnesses are present? All of these pesky details really matter when it comes to proving the will is valid. 

For example, in Florida, two witnesses must sign a form saying they watched the person sign the will, or that the person told them that they previously signed the will.  (See Fla. Stat. § 732.502) But in New York, the person who made the will has 30 days after he or she signs it to have two witnesses attest that the person signed the will. The witnesses must agree that the person making the will acknowledged that it was their signature. Then the witnesses must sign the bottom of the will and provide their names and addresses. (See NY Est. Pow & Trusts L § 3-2.1) 

People often get tripped up on this final step because they are using outdated forms that came from a book, or forms they found on the internet. You can avoid this by trusting FastWill’s network of lawyers, who utilize AI to make sure you are fully informed on how to sign, date, and witness your will and trust documents.

Mistake #2:  You made a worthless handwritten will!

Some states let you make a holographic will - that’s a fancy word for handwritten. But other states make such wills illegal. This can be frustrating for people who thought they were doing the right thing by writing down their wishes. The requirements for making a holographic will vary by state. Some states only allow a handwritten will if it is witnessed. Other states have more stringent requirements, such as requiring each section to have been written in the handwriting of the person making the will. That can prove difficult for some elderly people who need help writing a long document.  

This very thing led to a California court case in 1982. The deceased, Frances Black, used a pre-printed will and filled in the form with her handwriting. But a California probate court invalidated the will because the law forbade incorporation of printed language with written language. Black’s daughter sued the family who was named in the partially handwritten will. The California Supreme Court eventually ruled that the will was valid because policymakers wanted to encourage people to make wills without overly technical requirements. (See In Re Estate of Black, [L.A. No. 31280. Supreme Court of California. March 1, 1982). Although that may seem like a win for people with holographic wills, it really isn’t. It took five years for the case to wind its way through the courts, with both parties spending considerable money on lawyers, shrinking the overall value of the estate. 

Although you would think courts would be predisposed to cut people with handwritten wills a break, that doesn’t always happen! In 2001, a Texas court threw out a holographic will because it did not contain the person’s signature. The decedent had written “R. Hohmann Estate” on the bottom of the page, and his heir argued that this was enough to show he meant to sign it, but the court saw it differently. (See  In the Estate of Hohmann, No. 04-20-00237-CV, 2020 Tex. App. LEXIS 9216)

The answer to this dilemma is to simply NOT write a holographic will. 

Mistake #3:  You had a major life event and didn’t update your will!

Once your will is made, the natural tendency is to put it in a safe place and forget about it. This makes sense:  who wants to keep dwelling on the possibility of an untimely death? The problem with making a will and never looking at it again is that as life unfolds, things happen that may change your final wishes.  

When you experience life’s biggest moments, you should update your will. If you don’t, then you may get married and have children without thinking about how to be certain your spouse and kids are taken care of. If you get divorced, some states automatically invalidate your will, while others honor your original wishes. When you move to a different state, your entire will may need to be rewritten.

Some experts suggest that every five years or so, you review your will to make sure it still reflects the status of your life. You can always update the will by simply adding a legal codicil. This is a document that amends your will without having to rewrite the whole document. Of course, with today’s AI technology, creating a brand new will isn’t so onerous or expensive.

Mistake #4:  You forgot to inform your loved ones about your funeral wishes!

Many people include their funeral wishes in their will. It’s easy to see why this happens - a will is a legal document that contains all the instructions about what happens after you pass away. Why wouldn't you want to include your funeral wishes?

Well, the answer is simple:  your will isn’t read until weeks after your funeral.  If your wishes about burial, cremation, and memorial services are only stated in the will, then it might be too late to carry them out. 

It’s still a good thing to make funeral arrangements before you pass away, or at the very least to let your loved ones know what you want done. However, you have to make sure that your instructions are in the right hands long before the reading of the will. 

When thinking about your funeral, remember that this is probably the first thing your loved ones will have to contend with after you die. So if you want to be proactive, write a letter and make sure it is somewhere that your family will find. FastWill has a cloud system so that you can make legal documents and letters and give your family (or trustee, friend, lawyer, etc) access to those documents when the time comes.

Will Mistake #5:  You didn’t include your “digital footprint” in your estate plan!

According to the folks at Legacy Concierge, a digital vault, the average person under 70 years old now has over 160 digital accounts. That sounds like a lot, but just think about your own life in the 21st century:  you pay bills online, you upload photographs to Facebook, you maintain brokerage accounts and bank accounts, you send sensitive documents through email, you watch TV through streaming sites, you pay your mortgage online, you keep your tax filings on TurboTax. All of this activity doesn't just stop when you pass away. Most of these accounts continue to exist, billing your loved ones and charging you fees. When these accounts aren’t taken care of in your estate plan, the accounts are sitting ducks for internet hackers who may steal your password and identity.

You’re probably wondering why digital accounts aren’t just handled in a standard will. The reason for that is because digital assets are typically governed by terms-of-service agreements instead of by state property law. This creates problems when internet users die or otherwise lose the ability to manage their own digital assets. 

Enter the Fiduciary Access to Digital Assets Act, which has now been passed by most states. This law allows a person to name a fiduciary to access the person’s digital assets. It also permits a person to leave written, legally enforceable instructions for the disposition of these assets in estate planning documents - including by wills, trusts, or power of attorney.

There are digital vaults that keep track of your logins and passwords, but you really should leave instructions for cleaning up your digital footprint in your estate plan. One way to do this is to name a digital executor in your will, in accordance with the Fiduciary Access to Digital Assets Act. Your digital executor will shut down your accounts or disposes of them according to your instructions.

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