How hard can it be to mess up a will? Not too hard, as it turns out. Over 30 years of watching clients and attorneys work on estate planning, it seems there are at least 7 errors that are pretty common. ( “Estate planning” is the fancy term for work done on wills, trusts, probate, and estates.)
Below is a list of common mistakes to avoid, followed by what to do and not do about them.
- Procrastination due to indecision.
- Not interviewing a board-certified wills, trusts, and estates attorney.
- Not asking for timeframes.
- Not asking about fixed fees and/or hourly charges.
- Stopping at the drafted documents.
- Not filling out the separate writing to the will.
- Not following the attorney’s instruction letter.
Mistake 1. Procrastination due to indecision. This is the number one biggie. It would be natural, but wrong, to assume that before you go see the attorney, you have to figure out who gets what, and, often worse, who will take care of your minor kids. Sometimes it even leads to arguments. Bad ones. This is why attorneys are called “counselors.” Many, many people just like you have a difficult time figuring out the flow chart of if-then-who-gets-who-or-what. Estate planning attorneys counsel, advise, and help people figure this tough stuff out. All. The. Time. The best move you can make is to set the initial consultation appointment (which is often free), and see how much easier it can be than you think, with some professional help.
Mistake 2. Not interviewing a board-certified wills, trusts, and estates attorney (an “Estate Planning” attorney). Some people think “my situation is pretty simple.” So they use LegalZoom, their friend’s kid who is a 3rd year law school student, or their corporate attorney. All of those options may work just fine for you. But sometimes we confuse “common” with “simple.” It is common, but NOT simple, to be in a second marriage; to own a home in another state; or to have a family member with an addiction problem. These are only a few examples. Attorneys who specialize in wills, trusts, and estates are skilled at navigating those common, but not-simple-once-you’re-dead, situations. If you don’t know an Estate Planning attorney, ask your financial planner, accountant, or corporate attorney for a recommendation, or check out members of your local Estate Planning Council (www.naepc.org). At least go for an interview to see what advice they might share that might be uniquely helpful to you.
Mistake 3. Not asking for deadlines. There’s an old saying for lawyers, “The best marketing you can do is the work on your desk.” Many clients have a wonderful meeting with the attorney, walking away feeling much better about their situation. Then a week goes by, and they don’t hear anything. They realize they don’t know whether it would be three weeks, or one, or six. At the end of the meeting, it’s a good idea to say something like, “I know you have a lot on your desk so I just want to know what to expect. How long before we would hear from you again on this?” Most attorneys appreciate the timeframe being brought to their attention. (If they don’t, you need to interview another attorney.) Now you leave feeling good, and you have clear expectations on both sides. It also keeps the momentum going in a process that is more prone to slowdowns than the Howard Frankland Bridge at 4:00. (Inside joke for Tampa Bay peeps.)
Mistake 4. Not asking about fixed fees and hourly charges. Many estate planning attorneys will prepare a bundle of documents for a fixed fee. If they are charging a fee they think is fair, this will lead to more relaxed, productive conversations. If they are charging too little, you may find yourselves feeling rushed. If they are charging by the hour, then it is not appropriate for them to charge you for stories from their last vacation or their child’s most recent school award (I am not making these up – clients have really been charged for these). Again be clear about expectations – would they charge a fixed fee for the work? If they demur and you really like them, would they at least quote a range so you know what to expect? A good deal for both sides is that you get what you need – a professional estate plan – and they get fairly compensated for their advice, counsel, drafting, and followup. This is not a commodity to be shopped – there is a high value in the grief and heartache you will spare your heirs by having it done right.
Mistake 5. Stopping at the drafted documents. You made the tough choices, the attorney did their job and drafted what you decided, and now you have your will, living will, health care directives, and durable powers of attorney. Maybe you even have a trust. But they aren’t signed, executed, or notarized, or not done so properly. In most states, that’s worth zip in court. Nada. Nothing. It’s as if you didn’t do anything at all. You MUST complete the process and have properly executed documents for a judge to honor your wishes. No exceptions without lots of expenses and time and court and lawyers for those you left behind. Don’t put them through that. Finish the job.
Mistake 6. Not filling out the separate writing to the will. The separate writing to the will is an addendum where you list your untitled property – the guitar signed by The Knack that you never play, Grandma’s jewelry, antiques, art, cars, boats, toys, and knickknacks – and who gets it. According to some attorneys, the fights over the knickknacks can be the most wrenching, emotional, and costly. Do your family a favor and fill it out. The good news is, as your wishes, and your stuff, change, you can tear up the old separate writing and write a new one without going to the attorney. Just keep it with the will in a fireproof, waterproof place.
(Book Recommendation: Who Gets Grandma’s Yellow Pie Plate? A Guide to Passing On Personal Possessions, by Marlene Stum)
Mistake 7. Not following the attorney’s final instructions. Once you have your documents executed, a good attorney will send an instruction letter. The instruction letter details things like how your assets should be retitled into your trust and how your beneficiary designations should be worded on your IRAs and life insurance. Yet some people throw the letter in the safe with their documents and never read it. Bad idea. Some attorneys will actually follow through with you to show them proof that you followed their instructions. Like the document execution, if the instructions aren’t followed, it can be as if you did nothing for certain types of accounts and assets.
Remember the greatest value in estate planning is saving the people you love from more stress at a time when they will be grieving and heartbroken. Grieving people need to focus on healing; not on guessing what you would have wanted or worse, fighting about it. Having a true counselor at hand means having someone who understood who you were, what you wanted, and who helped to see that it got documented wisely and carried out as smoothly as possible. Handled well on both sides, the estate planning attorney relationship can be one of the best you and your family ever encounter.