10 Common Problems with Last Wills and Testaments
A last will and testament serves as a solid foundation for our clients’ estate plans. A will serves many purposes, but perhaps the most important is identifying who you will leave assets to. Unfortunately, some wills contain mistakes, which end up creating headaches or defeating the will entirely. Below, our Aiken, SC lawyer for wills, looks at the ten most common problems. You can minimize the risk of these problems by hiring our law firm to represent you.
A will is a type of writing. With any writing, you want to be clear with your language and avoid confusion. When your language is open to more than one interpretation, it is ambiguous.
For example, a will might say, “I leave to my brother John $4,000 and to my sister, Eileen.” What does this mean? It could mean:
You leave $4,000 to John and $4,000 also to Eileen, or
You leave $4,000 to John and nothing to Eileen, or
You leave $4,000 for both John and Eileen to split.
A good lawyer will eliminate ambiguity in a last will and testament.
2. Missing Gifts
If you want someone to inherit money or an item, you need to name them as a beneficiary. When people create their own wills, they often discover weeks later they forgot to leave assets to someone.
It’s not enough to tell people verbally you want to make a change or intend to leave money to someone. It needs to be in the will. Call a lawyer to revise a will the right way.
3. Typographical Errors
Certain typographical errors cause confusion. For example, you might write, “I leave my cat, Benjamin, to my sister and my dog, Tessie, to my brother.” But your cat’s name is really Tessie, and the dog is named Benjamin. This is the type of error people can make when they are rushing to create their own will. It creates confusion about your intent.
Some typographical errors are minor. For example, you might leave your house to a child but put the wrong address in the will, typing “1255 South Street” instead of “1225 South Street.” Usually, a minor error can be fixed because everyone will realize you don’t own property at 1255 South Street.
4. Failed Gifts
A gift fails when you leave it to someone who dies before you. This happens with surprising frequency. For example, you might leave a motor home to your brother, but he died four years before you did. You can avoid problems by creating a contingent beneficiary who will inherit if your primary beneficiary passes. Often, the contingent beneficiary is someone younger, although it’s up to you to choose someone.
Another failed gift is trying to leave money to your pet. Animals are property, so they cannot inherit from you. If you have a beloved pet, you should work with an attorney on how to provide for it.
5. Assets No Longer in Your Estate
You can only use a will to pass assets you own. Some people use their will to leave their house to someone, but they own the house in joint tenancy with the right of survivorship. When they die, their interest in the real estate evaporates, leaving the other joint tenant as the sole owner.
6. Missing Signature
Under S.C. Code § 62-2-502, every will must be signed by the testator. If you can’t sign, then someone can sign at your direction. If you don’t sign your will, then the will is invalid. This is the type of error that can result in your will getting thrown out of court.
7. Missing Witnesses
According to the law, you also need to sign in front of two witnesses or at least acknowledge a will to them. These two witnesses then need to sign. If they don’t, you have an invalid will.
8. Mistakes Involving the Personal Representative
Choosing the right personal representative is critical for having probate go smoothly. This is the person tasked with carrying out the wishes in the will. Your personal representative also must settle debts involving the estate and could even bring a lawsuit on the estate’s behalf.
Ideally, you want someone who is mature, detailed, intelligent, and a good communicator. All sorts of problems can arise:
The person you chose passed away before you, and you didn’t name an alternate.
The person moved away from South Carolina, which makes serving as a personal representative hard.
You pick someone ill-suited for the task of being a personal representative.
Work closely with your lawyer to identify someone to serve.
9. Improperly Executed Codicil
A codicil is an amendment to a will. It needs to be executed properly, using all the formalities as the original will. A common mistake involves someone trying to make handwritten insertions into their will after it is executed. These additions are ineffective—and you might cause chaos.
10. Improper Revocation of Your Will
You can revoke any will, so long as you have capacity. South Carolina lets you revoke by burning the will, marking it up, or tearing it to bits and shreds. But you might create confusion trying to revoke your will this way. Imagine if you tear out the last sheet of your will. Are you revoking only the gifts on that last sheet? Revoking your signature, which appears on the sheet? Revoking the entire will? It’s hard to tell.
The best step is to create a new will, which will state in plain language that it is revoking prior wills. There should be no confusion.
Will a Mistake Make Your Will Invalid?
It depends on the mistake. Any failure to follow the formalities is dire. As mentioned above, you must sign the will or have someone sign at your instruction, and you need to sign it in front of two witnesses or at least acknowledge it’s your will to them. The witnesses then need to sign. If you don’t follow these steps, the will is invalid.
Other mistakes are minor. The key is whether the personal representative and probate court can identify what you want to do. See our post on Can a Will be Changed After Death for more information.
Call Us About Your Will Today
Surasky Law Firm has created innumerable wills. We know how to create them the correct way, so there is no doubt about your intentions. Contact us to schedule a consultation.