Don’t Step in That… Common Estate Planning Mistakes

Part 1

Okay, so you’ve read about how important a will or other estate plan can be (or maybe you haven’t yet but can remedy that by clicking here).  Now you’re thinking about your estate plan and how to provide for those people, pets, and causes you care about most after you are gone.  Here is a list of common estate planning mistakes to be avoided, in no particular order, of course):

1.  Failing to create a will or establish a plan of any kind.

As fictional auto parts tycoon Ray Zalinsky said, “Good, you’ve pinpointed it.  Step two is washing it out,”  it does you and your loved ones no good to understand the importance of implementing an estate plan if you don’t follow through on the idea.  Failing to leave behind a will or other plan can leave your assets and heirs at the mercy of the laws of intestacy and the probate courts.

2.  Will defects.

Simply drafting a will on the back of a Sweet Tomatoes napkin and calling it good may or may not get the job done, depending on the laws of your jurisdiction.  That’s right, there are laws in every state that outline what makes a will valid.

For example, ‘holographic wills’ are wills that are handwritten and signed by the testator but not attested to by any witnesses.  While valid in some states, holographic wills are not valid in the state of Oregon.

Some states require that multi-page wills be signed on every page.  Some states require that a will be witnessed by at least two people.  Some states go further and require that only one or even neither of the witnesses can be a devisee under the will.

These requirements are hard and fast rules; there is no gray area.  A will is either valid or invalid, and an invalid will is pretty much the same as no will.

3.  Failing to revisit your plan.

So, you’ve drawn up that will and you’re feeling pretty good about.  Well, you should but don’t think you get off that easily.  A will or other estate plan should be reviewed with your attorney periodically to ensure that it still meets your needs.  We recommend reviewing your will at least once every three years.

Additionally, some major life changes, such as marriage or divorce, can invalidate your will in part or in whole.  For these reasons we also recommend reviewing your will with an attorney before any major life change occurs, if possible.

4.  Failing to consider non-probate options.

There are other methods of passing on your assets to those around you besides a will or a trust.  Most financial accounts and institutions allow you to designate a beneficiary to receive the proceeds of an account upon your death.  Real property and some personal property can be ‘titled’ in joint ownership with right of survivorship between yourself and the person or entity to whom you wish to leave it.  These tools can avoid some of the expense and hassle of probate but carry with them their own concerns.  Please, seek the advice of an attorney to discuss how this option might work in your situation.

5.  Failing to provide for your four-legged loved ones.

Hardly anyone who undertakes to prepare a will or other estate plan forgets to consider his or her spouse  and children.  Think about the headache that would cause!  Many people even go so far as to leave a portion of their estate to a favorite charity or religious organization.  What about Tiger and Princess?

It wasn’t long ago that the preferred practice among those wills that did bother to even mention a pet was to instruct that the decedent’s furry friend was to be euthanized and buried or cremated with its master (gasp!).  Now, we understand that is not only selfish but inhumane.  Accordingly, there is a growing trend to use estate planning tools to plan for the continued happy and healthy life (whew) for our pets after we die.  This may be as simple as willing the pet and a sum of money for its care to a trusted person, or as extravagant as a multi-million-dollar ‘pet trust,’ with all the personal chefs and chauffers a Real Housewife would expect.

Part 2

For informational purposes only and not to be relied upon as legal advice.

by Brook D. Wood

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