Mistakes in Wills

Q.    What mistakes should a person avoid when doing a will?

A.    I have chosen the five[i] following mistakes to avoid.

NOT HAVING A WILL IN THE FIRST PLACE IS A BIG MISTAKE PEOPLE MAKE.  They think they have nothing worth addressing and so they don’t make a will.  Or they might believe some bad luck will immediately follow such that they will die soon after making the will.  Superstition.  A will is a gift you give your love ones.  Don‘t focus on money and things.  Focus on clear statements that create peace of mind, express your generosity in directing personal belongings, and leave no confusion and or misunderstandings.  Sad as your passing may be, planning via a will reduces stress for the ones who are left behind.

THE SECOND MISTAKE IS NOT SHARING INFORMATION.   Even with a will, it is very difficult to properly administer an estate if no one can find your assets.  Most of us like to keep our finances and bills private, but it is helpful to those left behind if your affairs are at least documented and organized.  I tell all personal representatives to act like a detective.   Check drawers, files, banks, and the mail over several months and remember some statements come quarterly, 1099s and other tax information come at the end of January.

THE THIRD MISTAKE IS GETTING SOMEONE TO MAKE A WILL WHO LACKS MENTAL CAPACITY.   Oral wills are not valid in South Carolina.  And death bed wills made when grandpa can barely make an X and is on some strong pain medication is highly questionable.  The situation is even more questionable when family members don’t get along.  Likely you, the beneficiary, will be unable to testify at the hearing because of the SC Dead Man Statute, therefore the testimony of the drafting attorney is critical.

THE FOURTH MISTAKE IS MAKING HANDWRITTEN EDITS TO THE WILL.  A will is valid in SC only if it is signed in front of two witnesses, one of which is a notary, and contains certain factual allegations that there has been no undue influence etc.  While the testator can cross out provisions in a will, any portion you think you are adding, must in fact be in writing and properly witnessed.  This rarely happens unless a true codicil or new will is created with all the execution formalities required by law being followed.

THE FIFTH MISTAKE PEOPLE MAKE WHEN CREATING A WILL IS NOT COORDINATING BENEFICIARY DESIGNATIONS WITH WILL LANGUAGE.  If you want life insurance to be used first for your funeral, then it is important to understand your will has no impact whatsoever on the insurance company.  The Company will pay to the named beneficiary, who may or may not use it for burial purposes and who may seek reimbursement for any monies spent on behalf of your estate.

Likewise, you may have a nice nest egg in assets now, but twenty years from now you may have a lot, lot less.  Leaving exact dollar amounts could mean someone you thought would get a lot in fact ends up getting nothing.   Percentages with caps are much safer.

Disclaimer:  Information contained in this column is meant to be of general information on frequently asked questions concerning disability, elder law, estate planning and probate law, and does not contain specific legal advice to a client.  No attorney-client relationship is created by reading this column.     5/2018

[i]  Credit to Minnesota Attorney Douglas P. Radunz for his article on “The Ten Most common Mistakes in Estate Planning,” that got me thinking.

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