Understanding the Hazards of Writing Your Own Will

Wed Nov 30, 2022 | Wills | Share

For people with modest estates, wills can be a very straightforward and simple way to distribute your assets upon your death. There are a variety of online resources available that offer to provide you with the tools and forms you need to draft your own will for much less than you would supposedly spend if you hired a lawyer. This may seem like an obvious solution, but they don’t tell you about the many common pitfalls that can upend your estate plan when you draft your own will. The best way to plan for the future and protect those you love is to contact an experienced probate lawyer to discuss your needs. 

Improper Execution

In order for your will to be considered valid in the state of Florida, it must be validly executed. This means that it must be signed by the person making the will (the testator) as well as two witnesses. In addition, all parties must sign the will in each other’s presence. 

A common mistake people make when drafting their own will is to sign the will and then take it to their witnesses for signature. They are often unaware that they need two witnesses and that those witnesses must sign the will in front of each other. As a result, their will is not properly executed. 

Failure to properly execute your will is a fatal error, regardless of whether your will is otherwise flawless. The probate court will not recognize a will that hasn’t been properly executed. As a result, it will be as if you had no will at all and your assets will be distributed according to Florida’s intestate succession laws. This can be a devastating outcome for many people. An experienced probate lawyer can ensure that your will is properly executed so that you can rest assured that your assets will be distributed in accordance with your wishes. 

Including Assets That Don’t Pass Through Probate

When most people sit down to draft their will, they strive to distribute their assets in a way that is fair for all of their heirs and beneficiaries. As part of this calculation, many people who draft their own wills will include assets that do not pass through probate. The end result is that some beneficiaries receive a much greater share than intended while others may inherit next to nothing. 

Some of the assets that typically do not pass through probate include the following: 

• Jointly held bank accounts
• Life insurance policies with a named beneficiary
• Pensions and retirement accounts with a named beneficiary
• Jointly owned real estate with a right of survivorship
• Property held in trust

One of the ways that a probate attorney can help is by inventorying your assets and then helping you draft a will that accounts for any assets that will transfer outside of the probate process. 

Choosing the Wrong Personal Representative

Another mistake that people make when drafting their own wills is failing to carefully consider who should be their personal representative. Many people choose someone who is close to them but fail to consider whether that person will be up to the task or the likelihood that they may die before they do. Florida also requires that the personal representative be a resident of Florida at the time of the Decedent’s death, which is another factor that should be considered. 

If the personal representative is unable to serve, a new personal representative will then have to be appointed before probate can move forward. If the will does not provide for a successor personal representative, then one may be chosen by the majority of the beneficiaries or the court. This means that a personal representative may be chosen that you do not agree with.  

In addition, serving as the personal representative for an estate is a significant responsibility. Their duties include the following: 

• Filing the necessary paperwork with the probate court in order to administer the will
• Identifying and securing assets of the estate
• Identifying creditors and paying their claims or objecting when necessary
• Filing tax returns and paying any applicable taxes
• Distributing assets to the beneficiaries of the will

Many people can become quickly overwhelmed by serving as a personal representative, leading to mistakes and delays in the probate process.  

A probate lawyer can work with you to choose the best possible personal representative for your estate so that you can be relatively certain that probate can proceed with minimal delays. 

Typos, Errors, and Ambiguities

For the person writing the will, their intentions are perfectly clear with no room for debate. They often see what they want it to say instead of what it actually says. Vague or ambiguous language can give rise to different interpretations that yield very different outcomes, often pitting family members against each other. A knowledgeable probate lawyer can draft a will that clearly and effectively communicates your intentions concerning the distribution of your estate. 

Typos can also be a problem. Inserting a period where there should be a comma, for example,  when dealing with numbers can have a significant impact on who inherits what. Other typos can lead to confusion. Working with a probate attorney ensures that there is at least one other set of eyes to reviewing your will before it is finalized. 

Amendments or Revisions to Your Will 

All of these hazards apply to making amendments or revisions to your will. Many people think that crossing things out or writing in the margin of the will is a valid way to amend their will so long as it is signed or initialed. This is not the case, and the amendment will be disregarded by the probate court just as it would disregard a will that wasn’t validly executed. Even if your will was drafted by an attorney, you should not attempt to make amendments or revisions without the help of a probate lawyer. 

Need a Will? Contact Ellis Law Group Today

A will is one of the best ways to protect your family’s future, and it may not be nearly as expensive as you think. Invest in some peace of mind by getting the estate planning guidance you need. Contact Ellis Law Group at 561-910-7500 to schedule an appointment today.