Individuals who take the time to draft a will usually have specific reasons for doing so. They want to protect their family members, distribute their property in a certain way or entrust their estate to a specific person.
Many people view wills as simple testamentary instruments, which is true to a certain degree. Wills are the most basic estate planning instrument, but they are subject to numerous legal requirements. Small mistakes when drafting a will can lead to the courts refusing to uphold the document after an individual dies.
What common mistakes when drafting a will might invalidate a testator’s attempts to plan their estate?
Using a creative format
There are many ways for people to convey information to others. They can make an audio recording of themselves speaking their wishes aloud. They can capture video footage of themselves explaining their preferences. They can even potentially draft a digital estate plan that is completely electronic. Unfortunately, none of those formats comply with state requirements. Under current probate statutes, a will need to be a written document for it to be valid and enforceable. Digital documents and recordings can serve to supplement a will but cannot stand on their own as testamentary instruments.
Ignoring witness requirements
In general, wills need witnesses to establish that they are valid. A witness can affirm that the testator had the necessary capacity to draft a valid document. They can also affirm that the testator was the party who signed the document. People generally need to have at least two witnesses to create a valid will. Without witnesses, the courts may set aside the document, particularly if someone brings a contest against it.
Including illegal provisions
Some people become a little too creative when thinking about their legacies. If they try to include terms that violate state law, that might eventually lead to the courts setting aside the entire will.
Most of the time, it is beneficial for those drafting or updating a will to partner with someone familiar with the law to ensure that their documents can serve their intended purpose. Learning more about the potential pitfalls of estate planning can help people better ensure that they retain control over their legacy.