Checklist of Common Mistakes in a Will
This Preventive Law Study was written by: John Goodson, Colleen Manley and Christine Goodson Forakis.
Summary
Written for estate planning attorneys, this guide is crucial to any properly executed will, including the pour-over will. After decades of practice and experience, John Goodson designed these checklists in order to prevent the attorney mistakes that are far too frequently made when drafting documents. Mistakes can be costly to the drafting attorney who may have to redraft or amend a document at their own expense. The Checklist of Common Mistakes in a Will is part of a series of checklists created to aid the estate planning community.
Based on a presentation by John Goodson To the College of Estate Planning Attorneys
(Legend: “X” = needs correction or attention; “—“ = OK; “n/a” = not applicable; and “?” = have question here)
| Client Name: | Evaluator Name: | |
| Date of Review | Number of Errors: | Percent of Errors |
| ____ | 1. | No option to pay or not to pay secured debts that may be advantageous. | |
| ____ | 2. | Illogical order of paragraphs. The most important information needs to be in the beginning of the document, such as Personal Representative, Guardian, Conservator of testator and his/her children. | |
| ____ | 3. | No authorization to make out Tangible Personal Property Lists. | |
| ____ | 4. | No Tangible Personal Property List forms included to identify property, devisees of each property, and alternate devisees. | |
| ____ | 5. | No presumption on simultaneous death that wealthiest spouse died first so as to completely fund all estate tax exemptions as much as possible. | |
| ____ | 6. | No guardians of minor or incompetent children appointed. This should be done even when the client has no children. | |
| ____ | 7. | No guardian and conservator of testator/testatrix appointed so as to facilitate court proceedings. | |
| ____ | 8. | No multiple backups (at least three each) for every fiduciary position. This applies to all documents. | |
| ____ | 9. | No backup trust for minors should minor children receive devises directly from the Will. | |
| ____ | 10. | No provision to negate inadvertent triggering of powers of appointment by implication. You never know what trusts and/or Wills are prepared naming the client as an heir. | |
| ____ | 11. | Testamentary trust format used resulting in unnecessary probate proceedings and awkward structuring. Testamentary trusts are never a good idea. | |
| ____ | 12. | If there is a testamentary trust, no abstract of testamentary trust so as to protect privacy of trust provisions. | |
| ____ | 13. | Insufficient powers given to Personal Representative. The broader the powers, the better. | |
| ____ | 14. | Business left in probate estate resulting in compounding complications and delays. It should always be in trust. | |
| ____ | 15. | Incomplete definitions of terms used. Explain all terms used in document, such as per stirpes, per capita and by right of representation. | |
| ____ | 16. | No authority given to Personal Representative to make elections to cause assets of sub-trusts to be treated as Q-TIP property. | |
| ____ | 17. | No birth dates to identify beneficiaries. This applies to all documents. | |
| ____ | 18. | Relationship of persons named in Will not clearly designated. Using terms like “brother-in-law” are vague and confusing to anyone not familiar with the family. | |
| ____ | 19. | List of household goods and personal effects given is not complete by not including club memberships, insurance, and prepaid insurance premiums on property. | |
| ____ | 20. | No provisional remedy included if devisees of household goods, personal effects, or other personal property cannot agree. | |
| ____ | 21. | Home devises to surviving spouse or children not clarified in will. | |
| ____ | 22. | No provision for trustee of pour over trust to become co-personal representative and co-conservator so as to avoid double accounting. | |
| ____ | 23. | No trust safety clause if pour over trust not valid. | |
| ____ | 24. | No clear designations for funeral and burial arrangements. This needs to be a separate document. Funeral homes will not accept if put into Will. A well drafted and designed form eliminates all problems. | |
| ____ | 25. | No provision for Personal Representative to sign estate and fiduciary income tax returns whether or not will is probated. | |
| ____ | 26. | No clause for Personal Representative to equitably allocate estate taxes among probate assets, non–probate assets, and life insurance. Flexibility is the key. | |
| ____ | 27. | No explanation of unnatural inheritance or unnatural designation of order of priority for fiduciaries. Even if circumstances are obvious, an explanation soothes wounded egos. | |
| ____ | 28. | No provision for curtailing interest charges on legacies. | |
| ____ | 29. | No method established for knowledgeable person to interpret will so as to avoid or simplify judicial interpretations. | |
| ____ | 30. | No protection against invalidity of will if surviving spouse remarries without providing for new spouse. | |
| ____ | 31. | Disinheritance clauses provide for dollar amount and, as such, give unnecessary procedural rights to disinherit person. | |
| ____ | 32. | No simultaneous death provisions for children to avoid minor children having presumption in their favor, allowing a greater chance of dying intestate. | |
| ____ | 33. | No clause spelling out interpretation preference in favor of surviving spouse and children and maximum education for children. | |
| ____ | 34. | No generation skipping safeguard provisions, unless these are already in the associated revocable trust. (They usually go in the trust agreement.) | |
| ____ | 35. | No provisions protecting against devisees with addictions receiving inheritances which will feed addictions. | |
| ____ | 36. | Failure to use examples in the definition sections. Clients need and want things explained in simple terms. | |
| ____ | 37. | No provision for “Statement of Wishes.” | |
| ____ | 38. | No provision for waiver of bonds for all fiduciaries. | |
| ____ | 39. | No provision to discourage contest of will with an In Terrorem clause. | |
| ____ | 40. | No provisions in Will or Trust for backup contingent devisees and ultimate charitable devisee if all others predecease. | |
| ____ | 41. | No self-proving attestation clause. | |
| ____ | 42. | No warning to client in case of future marriages that Will does not protect stepchildren without an agreement to keep Wills without change (joint wills). | |
| ____ | 43. | Attorney present at signing of Will ceremony – attorney notarizes but does not sign as witness. | |
| ____ | 44. | Expressly cancel all prior wills by signature and date and include written cancellation provision in new will so that they are not inadvertently used later. It is also wise to write on the face of the old will that they are canceled with reference to the new will that canceled it. This way no one may contest revocation. | |
| ____ | 45. | No provision that the document is intended to be legal and effective in all states and countries. | |
| ____ | 46. | Using slanderous language in a Will regarding disinheritance. This causes present and future problems. | |
| ____ | 47. | No provision for achieving out of court dispute resolution using the Integrity Agreement or some other alternative dispute resolution provision. | |
| ____ | 48. | No signatures on every page as required around the world. This also prevents switching of pages at a later time. | |
| ____ | 49. | Failure to audiotape or videotape signings when contest is likely. | |
| ____ | 50. | No three witnesses, notary (verification and acknowledgment) and attorney’s certificate. | |
| ____ | 51. | Not using large print so the client and older low-level bureaucrats may read with ease. |
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DISCLAIMER
The content of this report is general in nature and is meant to be used for informational purposes only. Due to possible changes in the law and interpretations of the law, in addition to the uniqueness of each individual’s situation, this report should not be relied upon as an expression of legal advice. Before any action is taken by the reader, it is imperative that legal counsel or professional advisors be consulted.