A Last Will and Testament is the most basic and important component of a comprehensive estate plan. Even if your estate plan consists of carefully planned trusts, a “pour over” will acts as a safety net for property that is left out of the trust either inadvertently or exempted by law. This guide highlights some of the biggest mistakes made in poorly planned wills.
- Failing to Waive Bond Requirements
- Bequesting Property Pursuant to Conditions Against Public Policy
- Failure to Make Will “Self-Proving”
- Nominating Co-Executors
- Failing to Update Their Will
- Keeping The Will In A Safety Deposit Box
1. Failing to Waive Bond Requirements
Whenever an estate is opened, the Judge of Probate requires the personal representative to be bonded. The cost of a probate bond is normally set based on the value of the estate. Having a bond protects the Probate Court from liability should the personal representative squander the estate. But is a bond always required?
No. The bond requirement may be waived if it is stated in the will. State law allows the Testator to waive the requirement if it is put in writing in the will. Annual probate bond premiums normally range from a few hundred to several thousand dollars. In addition to the size of the estate, the bond premium can be affected by the personal representative’s credit score.
2. Bequesting Property Pursuant to Conditions Against Public Policy
Sometimes a Testator will “leave” certain property to a beneficiary granted that they fulfill a certain condition (e.g. separating from their spouse, committing a crime, attending a particular church or religion, etc). Most of the time if a will contains an unlawful provision, only that particular provision is stricken from the will. In other words, “the baby isn’t thrown out with the bath water.” Choose an experienced estate planning attorney to make sure everything in your will is enforceable.
3. Failure to Make Will “Self-Proving”
Self-proving means that the will can be admitted to probate without in court testimony. Otherwise, at least one witness must appear in court to offer sworn testimony to the probate judge. What makes the will “self-proving?” – That in addition to the two witness signatures, a notary public has also signed and stamped the document verifying their signatures as well as the Testator’s. If a will is not “self-proving” and each of the witnesses are unable to be located, the will cannot be validated by the probate court.
4. Nominating Co-Executors
This can arise when a Testator has multiple children and feels obligated to “treat everyone equally.” The truth is, the executor (also known as a personal representative) is a fiduciary for the estate. A fiduciary and beneficiary are two different things, although sometimes they can be both.
If a will nominates two or more executors, they must act unanimously. This can be extremely difficult given the amount of decisions and tasks that an executor must complete throughout the entirety of the probate process. And it becomes even more difficult when relatives are co-executors grieving the loss of a loved one.
5. Failing to Update Their Will
For example, updating a will for the sole purpose of having new, updated witnesses can make all the difference. If a person made a will thirty years ago when they lived in another state, there’s a good chance the two witnesses have passed away or will have to make arrangements to travel to probate court to testify. And worst case scenario, neither of the witnesses can be located so therefore, the will cannot be admitted to probate.
6. Keeping The Will In A Safety Deposit Box
There’s nothing more frustrating then not being able to locate a person’s will after they pass away. It can be especially frustrating when their will is possibly inside a safety deposit box and no one was given a key. In these situations, the bank will normally not answer any questions and might not even confirm that the decedent has a box with their bank. The only way to gain access to the safety deposit box is through an order from probate court. Always insure that a responsible person can access your will.
Contact An Estate Planning Attorney
Give our law firm a call for assistance in drafting your will. Our extensive experience dealing with probate estates allows us to view your estate planning needs from nearly every angle. This type of experience, along with our law firm’s commitment to working hard for our clients, often enable us to avoid many common mistakes that people make concerning their will.