Common Mistakes in Will Drafting

January 10, 2019, by Shelley Thompson, Burns Figa & Will, PC


Drafting estate plans, litigating probate disputes, and administering trusts and estates after death, have provided me insight into common mistakes made in will drafting. Here are some mistakes made, or misconceptions some clients have as they begin their estate plan:

  1. Desiring to bequest specific accounts to specific people. Some clients think they want to leave a particular account to one person, and another account to another person. They envision naming such accounts in their will or trust. The first problem with this approach is that the account often changes, the institution is acquired, the money is spent, or the money is consolidated elsewhere, thereby creating ambiguity, conflict, or need for court intervention as to how the estate should be distributed after death. The second problem with naming particular accounts is that, as the values of those accounts change, the ultimate inheritance per person can often be very different than the testator expected. Naming accounts means an annual update of your estate plan becomes essential, which increases attorneys’ fees and is difficult as a person ages. Lastly, many accounts have beneficiary designations, which trump any will or trust. If an estate plan is not thoughtfully put together when considering such designations, then each loved one will often end up with very different assets than the testator intended. Depending on the client’s situation, sometimes leaving the estate in shares or percentages is better (i.e, equally between children, or 70% Bob and 30% Mary) with beneficiary designations matching.

  2. Accidentally creating a trust. In one case, a testator had used a non-lawyer software (form) to create his will with the help of a family member. The language of the will conflicted with other language in the will, in multiple places. So the terms of the will were hotly contested by family members after death, with tremendous cost to the estate and emotional cost to the litigants. Where one sentence read that all the assets were to be divided equally between the descendants, another sentence said that a certain family member could continue to reside in a residence so long as he cared for it and paid its expenses. First, these two things cannot both happen (all the assets cannot be divided and distributed when someone is living in one house). Second, to expect an estate to stay open to hold a residence for someone to keep living in it free of charge, and provide for terms and conditions of that stay, is to create a long-lasting trust. The testator did not mean to create a trust. Who would be the trustee and manage the trust for years to come, and with what assets? What would happen if the person staying there didn’t follow the terms and conditions? The document was missing all the trust terms needed to clarify how the assets would be managed. The family members fought for an extended period after death, ultimately needing a judge to decide how to administer the estate, destroying relationships, losing assets, and incurring attorneys’ fees. To avoid this mess, a will should be unambiguous and not contain conflicting terms.

  3. Trying too hard to equalize. If you have an estate with real property and little cash, and you’d like to leave certain real property to a particular person, do so without trying to hard to equalize the gift among others. Do not assume, for example, a mortgage could be taken out on the property to pay others, or that somehow your executor can find a way to equalize when there isn’t sufficient cash to do so. Either provide that the real property gets sold and distributed equally, or be courageous enough to leave it to one person regardless of the fact it may not be equal with the gifts you leave for another person.

  4. Naming the wrong executor. Some post-death disputes are caused by the testator having named someone as executor who they felt pressure to name, or who expected to be named, rather than the person best for the job. The job of your executor is to wrap up your financial affairs and then distribute assets in accordance with your will or trust and in the best interests of the beneficiaries. If you are considering naming someone self-interested who may not be capable of doing the right thing, or who may take years to administer the estate and fail to account to the beneficiaries, then you are considering the wrong person. Name someone you trust will do an excellent job as your fiduciary.

It is important to use an estate-planning attorney (i.e., in person or through to draft your estate plan and avoid common mistakes. The attorney can help you create an estate plan that is just right for your situation and is what you want, without making these and other common mistakes.