When making a will, there will always be someone ready to contest its authenticity, so it’s important to get it right. What would make a will invalid? Have you been confused about this for a while due to the huge amount of complex information on this topic, or have you been unsure whether the maker has added or forgotten to add something that makes the will valid? Here, we will cover a lot of ground, but at a simple level for better understanding.
What Makes A Will Invalid?
For a will to be valid, certain legal formalities must be followed. When these formalities are not followed, there are consequences, and the major consequence is that the will would be deemed invalid. Here are some factors that make a will invalid:
- A will without witnesses: The purpose of a witness when making a will is to make sure that the will was not written under duress or when the person making the will was not of sound mind. Therefore, when a will is made without the presence of a witness, it is invalid.
- A will written by a minor (18-) testator: The law states that a minor (18-) is not in a position to make informed decisions meaning that he/she is not in a position to write a will.
- A will written by a testator that is of unsound mind: Only a person in the right state of mind can make a will. This is because a sound mind is needed to understand how to bequeath property after the person has gone.
- A will that is replaced by a later or a newer one: The replacement of an old personal will with a new one, especially with the death of the executor, spells fraud and 99% of the time is deemed invalid.
- A will that is forged or unduly influenced: There have been many cases in which wills have been forged or made under undue influence; once this has been proven in a court of law, the will is deemed as invalid.
- A will that lacks the content required: Certain contents are required to be in a will for different locations and countries; when these are absent, the will is invalid.
What to avoid when making a will?
Now to get things right, especially now we know what makes a will invalid, we must understand what to avoid when we start making our personal will.
- Properties that are invalid
Property is the foundation of any will, but some properties must be avoided when making a will. This is a mistake you must try to avoid at all cost.
Joint tenancy property: joint tenancy is a legal arrangement in which certain property is owned by more than one person with equal rights to the property. This property definitely does not belong to one person, and putting it in a will would lead to a will dispute. The best option is to find an alternative method of dealing with the property.
Property in a living trust: a will and a living trust are part of estate plans and most of the time, these two factors are at war. The one thing you must understand that, when there is conflict, a trust always takes precedence over a will. This is because a will has no power to decide who receives trust properties.
Life insurance proceeds that have a beneficiary: this is the junction at which wills and probate laws do not have any power. If your life insurance is named with a beneficiary, then the proceeds do not go through probate and are easily accessed by the beneficiaries. So, you have to avoid adding this to your will, especially if it has a different beneficiary to your life insurance.
Retirement plan proceeds: the retirement plan proceeds naturally to the well-stated beneficiary, which means that it already has a destination without the involvement of the will. If there is a slight difference in the beneficiary’s name(s) or initials, there will be a problem, and you do not want that.
Stocks and bonds held in beneficiary: when a stock or bond is held in beneficiary, the broker sends it directly to your beneficiary’s account. So, as long as you name your beneficiary, there is no need to add it to your will.
Proceeds from a payable-on-death bank account: having a bank account that is payable on death (POD) means that the bank would pay the designated beneficiaries to their bank account. They would get paid whether or not you add them to the will, which is why you should avoid doing so.
- Choosing A Bad Executor
The executor is legally responsible for sorting out the estate and finances of the deceased. The executor makes sure that the taxes and debts are paid with the rest of the property when it is shared, as stated in the will.
If you choose the wrong executor, these complications could occur. You should try to avoid this from happening.
- Passing the asset to minors
It is not the case that minors cannot be beneficiaries, but they cannot legally own any property from the will until they are of age. The legal age at which children are eligible to take hold of their assets from the will is 18 years and for large assets or estates 21 or 25 years. At this stage, the asset is held in the hands of the executor until the minors reach maturity. Within that time, and according to the inheritance law, children who are benefactors may be entitled to claim a part of the deceased parent’s property.
- Not being specific or detailed
A will must be specific. Writing a will that is not specific must be avoided at all cost. Every detail of your asset from your bank account numbers to the beneficiaries’ names, to avoid confusion and disputes, you must make sure that the details given are specific. The slightest mistakes and/or omissions here could be costly.
- Leaving funeral instructions
The settling of the probate procedure does not happen until the funeral has been concluded. This is because the funeral is the first thing to be considered and, most of the time, families tend to conclude the burial plans before the will is read. If the funeral instructions do not tally with that was done, then you have put your loved ones under a lot of stress. Rather than adding this to your will, tell your family what you want and you would get it.
- Including gifts for your pets
Under the law, animals cannot own property or accept gifts; and instead of complicating your will by adding these pets, you can leave them in the hands of a beneficiary who would take good care of them. You can get someone to take care of them, but you need to also make sure that they are provided with whatever they need.
- Failing to update your will
From the time of making your first will to the time of death, there may be many asset changes; these changes must be updated in your will. The same applies to your beneficiaries because you may lose some people to death and gain some from birth. These things must be considered; if these factors are not updated, you may find several loopholes when the will is being read, leading to will disputes and a lot of court time.
Making a will is easy if you know what to do and what to avoid. At My Estate Planning, we will provide you with the best Last Will and Testament. We will address all the challenges and problems that make your will invalid and ensure that your will is well defined, leaving your estate and your loved ones in safe hands. Find out more about our services by contacting us or by booking a free consultation.