Common Mistakes to Avoid When Making a Will

Creating a will is one of the most important steps you can take to protect your loved ones and ensure your wishes are honored after your death. This becomes especially critical after losing a spouse, when your estate planning needs likely change significantly. However, even well-intentioned individuals frequently make mistakes that can undermine their estate plans. Understanding these common pitfalls can help you create a more effective will that truly accomplishes your goals.

Procrastination: The Greatest Mistake of All

Perhaps the most common mistake is simply not creating a will at all. Many people delay this essential task, finding it uncomfortable to confront their mortality or assuming they have plenty of time to address it later.

"I see this constantly in my practice," says Elizabeth Chen, an estate planning attorney. "People know they need a will but put it off until a health scare or family emergency forces the issue. Unfortunately, for some, that realization comes too late."

After losing a spouse, you might be emotionally overwhelmed and focused on immediate concerns. However, updating or creating your will becomes even more urgent at this point. Without valid estate planning documents, your assets will be distributed according to state intestacy laws, which may not align with your wishes. Additionally, important decisions like guardianship for minor children could be left to court determination rather than your careful selection.

DIY Without Legal Review: Penny-Wise, Pound-Foolish

While online will-making tools and templates have made creating basic wills more accessible, relying solely on these resources without legal review often leads to costly mistakes.

Robert Sanchez discovered this the hard way after his mother passed away. "Mom used an online template to save money. But she didn't understand the legal terminology and ended up creating contradictions in the document. We spent far more on legal fees sorting out the problems than a proper will would have cost."

Common problems with DIY wills include:

• Improper execution that renders the will invalid
• Unclear language that creates ambiguity
• Failure to address state-specific requirements
• Inadequate provisions for contingencies

This doesn't mean online tools can't be helpful starting points, but having an attorney review your will before finalizing it can prevent expensive and stressful complications for your beneficiaries.

Failing to Update After Major Life Changes

A will isn't a "one-and-done" document. It should evolve as your life circumstances change. Significant events that typically warrant updating your will include:

• The death of a spouse or other beneficiary
• Marriage or divorce
• Birth or adoption of children or grandchildren
• Substantial changes in assets or financial situation
• Moves to different states with varying estate laws
• Changes in relationships with named executors or beneficiaries

David Miller, a financial planner specializing in transition planning, emphasizes this point: "I advise clients to review their estate plans at least every three to five years, and immediately after any major life event. The death of a spouse absolutely necessitates a comprehensive review since nearly every aspect of the estate plan likely needs adjustment."

Vague or Ambiguous Language

Clarity is crucial in will drafting. Ambiguous language can lead to confusion, family conflict, and even litigation.

"I've seen simple phrases tear families apart," notes probate attorney Julia Washington. "A direction to leave items of 'sentimental value' to a particular child without further specification created a bitter dispute between siblings that lasted years."

Be specific about:

• Exactly who should receive which assets
• What should happen if a beneficiary predeceases you
• Who should serve as guardian for minor children and under what circumstances
• Powers and limitations of your executor

Particularly after losing a spouse, review your will for references that might now be unclear or outdated. Phrases like "my remaining children" or "my spouse's family heirlooms" might have been clear when your spouse was alive but could create confusion now.

Ignoring Tax Implications

While recent changes have made estate taxes a concern for fewer Americans, failing to consider tax consequences can still significantly impact what your beneficiaries actually receive.

"Many clients focus exclusively on who gets what, overlooking how those assets will be taxed," explains James Peterson, an estate planning attorney. "For instance, leaving a traditional IRA to one child and a Roth IRA of equal value to another might seem fair on paper, but the tax consequences create substantial inequality."

After a spouse's death, your tax situation likely changes considerably. Strategies that worked for married couples, such as unlimited spousal transfers, may no longer apply. Consulting with a tax professional alongside your estate planning attorney helps ensure your will works efficiently within the current tax framework.

Forgetting About Digital Assets

In our increasingly digital world, failing to address online accounts, digital currencies, and electronic records is a growing problem in estate planning.

"Digital assets are regularly overlooked," says tech-focused estate planner Michael Zhang. "People remember to leave instructions for their house and bank accounts but forget about cryptocurrency holdings, digital photo libraries, social media accounts, and online businesses."

Your will should address:

• How digital assets should be accessed and distributed
• Who should manage your online presence
• What should happen to social media accounts
• How to access passwords and digital wallets

Some digital platforms now offer legacy options that work alongside your will to ensure your digital assets are properly handled.

Neglecting to Fund Trusts

If your estate plan includes trusts, a common mistake is creating the trust but failing to fund it by transferring assets into its ownership.

"A trust is just an empty vessel until you put something in it," Peterson explains. "I've seen beautifully crafted trusts that ultimately did nothing because the client never completed the crucial step of funding them."

This mistake often occurs when trusts are created as part of comprehensive estate planning but then assets are acquired later without being properly titled in the trust's name. Regular reviews with your estate planning attorney can help identify and correct these oversights.

Choosing the Wrong Executor

The executor of your will has significant responsibilities in managing your estate. Common mistakes include:

• Naming someone without first asking if they're willing to serve
• Choosing someone who lives far away, creating practical challenges
• Selecting someone who doesn't have the capability or temperament for the role
• Failing to name alternates if your first choice is unable or unwilling to serve

Carol Wright, who served as executor for her sister's estate, offers this insight: "Being an executor was much more demanding than I expected. It required organization, attention to detail, and the ability to make difficult decisions while grieving. Not everyone is equipped for this role, no matter how much they loved the deceased."

After losing a spouse who may have been your primary executor choice, carefully consider who now would best fulfill this crucial role.

Forgetting to Address Personal Items with Sentimental Value

While people typically focus on major assets like real estate and financial accounts in their wills, personal possessions with primarily sentimental value often create the most conflict among heirs.

"In twenty years of practice, I've seen more family relationships destroyed over personal items than money," Washington notes. "The sterling silver flatware, grandfather's pocket watch, or mother's handwritten recipes often hold emotional significance that far outweighs their monetary value."

Consider creating a personal property memorandum, a separate document referenced in your will that specifies who should receive particular items. This approach allows you to update your gifts of personal property without redoing your entire will.

Failing to Consider Special Needs Planning

If you have beneficiaries with special needs who receive government benefits, leaving assets directly to them could disrupt their eligibility for essential programs like Medicaid or Supplemental Security Income.

"This is one of the most heartbreaking mistakes I see," says Chen. "Parents or grandparents leave money intending to enhance the quality of life for a loved one with disabilities, only to inadvertently disqualify them from benefits they depend on."

Special needs trusts offer a solution, allowing you to provide for these beneficiaries without jeopardizing their benefits eligibility. This becomes particularly important after losing a spouse who may have been the primary caregiver or financial provider for a special needs individual.

Conclusion: The Value of Professional Guidance

While creating a will involves costs, the expense of professional guidance typically pales in comparison to the potential financial and emotional costs of these common mistakes.

"A will is far more than a legal document – it's your final communication with your loved ones," emphasizes Washington. "Getting it right provides not just financial security but also peace of mind and a final expression of your care for those who matter most to you."

For the newly widowed, updating your will might feel like one more burden during an already difficult time. However, ensuring your estate plan accurately reflects your new circumstances provides critical protection for yourself and your loved ones. Working with experienced professionals who understand both the legal requirements and the emotional complexities of this transition can make the process more manageable while helping you avoid these common pitfalls.