5 Mistakes Seniors Should Avoid When Writing a Last Will and Testament

By Taylor Johnson

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Death. It’s not a topic many people are comfortable discussing -- particularly in regards to their own mortality -- but as we approach our twilight years we reach a point when it has to be addressed.

In thinking about our death, we must ask ourselves:

  • How should my assets and estate be distributed?
  • Do I want my funeral or memorial service conducted in a specific way?
  • Who will I choose to be my executor?

Fail to adequately address these questions in a last will and testament, and your local court will make these decisions for you, and they may very well run counter to your personal wishes.

This is why a personal will and testament is important – if you die without a will, it is up to your local courts and your state’s or province’s laws to make major decisions, with no input from you. The court’s decision will undoubtedly have a lasting impact on your loved ones.

A last will and testament is a binding legal document, which you can use to guarantee that your last wishes will be carried out after your death. While every adult should have a last will and testament, most people don’t consider getting one until after retirement.

Sadly, waiting until retirement is just one of the five major mistakes that seniors make when writing their last will:

Mistake #1: Putting off your will

The number one mistake that people make is that they wait too long to write their will. This is an especially risky mistake for seniors who are well into their retirement. Once we reach the age of 60-65, it’s no secret that our mental health can rapidly deteriorate. For instance the American Psychological Association has found that in 2012 an estimated 20% of seniors over the age of 65 met criteria for a mental disorder.

Deteriorating mental health is a major issue when writing a will because it risks invalidating the document. If there is evidence that your cognitive skills were drastically declining at the time of writing your will, your ability to legally make or change your will (testamentary capacity) can be contested.

To prove testamentary capacity, a person must:

  • Understand the effects and consequences of the will
  • Know who the beneficiaries are
  • Know the value of their estate

Of course, the easiest way to prevent having your capacity being called into question is to finish your will as early as possible. Yet, for those who have waited until their mid to late 60s, it’s best that you have your doctor provide evidence – in the form of a sworn statement – that you were mentally stable at the time of writing your will.

Mistake #2: Choosing the WRONG Executor

The executor is the individual you choose to be in charge of satisfying the will and making sure your wishes are followed. The executor is also responsible for guaranteeing that all financial claims against your estate are taken care of from the proceeds of the estate prior to property distribution.

Therefore, this position is a critically important role that should only be entrusted to someone in which you have complete trust and faith in, and someone that you know can be relied upon to follow your wishes. It can be a hard, stressful, thankless job, which should be taken into consideration when naming an executor.

Mistake #3: Assuming your family will accept your wishes

When writing our will, most of us assume that our family and friends will honor and accept our last wishes. Unfortunately, a last will is often a cause for conflict among your adult children who feel that the document does not fairly distribute your assets.

Although we may believe that our last will is fair to our loved ones, their idea of what’s fair might not align with yours. There are two common cases that may incite a family dispute over a last will. For one, often children fight over who receives special possessions such as family heirlooms or antiques. This usually has to do with items of sentimental value.

The second scenario involves one child who receives more of the estate than their other siblings because they took on more responsibility in caring for their aging parents. While the other siblings may agree that this arrangement is fair, others may believe that it was a done through undue influence.

To help avoid these kinds of arguments, there are a few steps you can take:

  1. Ask your children what items they would like to have and get the high value items appraised before you prepare your will
  2. Once you’ve hammered out the details, sit down with your children and other beneficiaries to discuss what you believe is a fair structure for your estate distribution and the rationale behind it (i.e. giving more to the child who has done more to take care of you)
  3. Allow your children to express their opinions or concerns. This will help clear the air
  4. Videotape your reading and the signing of the will with your beneficiaries as a way to provide evidence of your testamentary capacity and your beneficiaries’ understanding of the provisions

4. Not Doing Things by the Book

Simply creating a will is only the beginning – your will must be formally executed according to your state’s or province’s laws before it can be considered legally binding. This can be as simple as signing the will in the presence of two adult witnesses, who also sign the will as an affirmation that your signature is valid.

To avoid the appearance of impropriety or possible conflict of interest, the witnesses should not be beneficiaries of your will. It is also wise to choose witnesses who are likely to outlive you. This can come in handy if the will is contested and the signers are needed to confirm that the will was properly executed in their presence.

Also, if you use an online or fill-in-the-blanks will to create your will, make absolutely sure all required fields are properly filled in and that the will is properly executed – missing small details or inadvertently leaving off important information can render such wills null and void.

5. Forgetting to Update

Life circumstances can change quickly, and without warning. A divorce or death of a loved one can easily change the dynamics of your will. Unfortunately, some seniors forget to update their wills after a major event.

A good rule of thumb is to carefully review your will at least once every twelve months – or more often as situations change – to make sure that everything is up to date. Make sure you discuss your will with your executor and the designated guardians, if applicable, to make sure they are still onboard and willing to take on the responsibility of their respective roles.

No matter how old you are, it always feels too early to plan for your death, but as a senior you assume an ever-growing risk with each passing year that you don’t have a will. It’s immensely important that you lay out a plan to ensure that your loved ones are taken care of after your passing. When you are ready to draft your will, discuss with a lawyer about how you can avoid the mistakes outlined above.

Taylor Johnson is a business expert at LegalTemplates.net, a legal documents company that strives to simplify the complex world of law and business for everyday people. He has been quoted by outlets including The New York Times, Chase.com, Monster, and FitSmallBusiness, and has been published in organizations ranging from allbusiness.com, Blogtrepreneur, to Small Businesses Do It Better. When he's not running the show at LegalTemplates.net, he's consulting and traveling, and writing he gets the chance.

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