Top 5 Issues to Consider When Drafting a Will

Top 5 Issues when Drafting a Will

A Will is a vital requirement for every estate plan. That said, wills come in all shapes and sizes. Here are a few examples of the different types of documents a person might consider:

Drafting a Will
Drafting a Will
  • Simple Will
  • Complex Will
  • Pour-Over Will
  • Will Codicil
  • Testamentary Will

Knowing this, of course many people immediately start with a simple will. After all, it is simple. However, simple is not always the best, especially if you have no idea why or how the other documents work. Of course, the reason we care so much about how they work is because we want the document to be valid.

Before we get to excited about drafting the document, you owe it to yourself to work through a deep dive of issues and questions. For example, do you own a home, have a blended family, or are fearful of a future disability. All of these types of wills or planning tools are worth vetting.

An ounce of prevention is worth a pound of cure.

– Benjamin Franklin

Now, assuming the pros and cons have been addressed for each document, the drafting process is a whole lot easier. When a Will is drafted, there are rules of construction exclusive to Minnesota. In Minnesota, drafting laws start under Part 6 of Chapter 524.

Drafting Tips for a Will

Again, assuming we know exactly the type of desired will, the drafting portion of the document is much easier. Here are a few drafting tips, in no particular order for other estate planning lawyers to consider:

  • Always verify the legal name of the Testator,
  • Triple check dates of birth,
  • Every will should have a clause that invalidates past wills,
  • Self Proving Affidavits are critical, and
  • Make sure your numbering is on point.

(1) Legal Name of the Testator

Do you know how often people fail to use or fix their legal name? It happens all the time. For some, it means adding their maiden name to random documents. For others, it means casually slipping in a hyphen. Sometimes. people shorthand their name into a nickname.

Unfortunately, these types of issues are difficult to overcome during the probate process. As a result, make sure legal documents match the will and vice versa. This includes birth certificates, wedding licenses, driver license, etc.

(2) Dates of Birth

Dates of Birth

This seems simple, but it isn’t. Our date of birth is found on our birth certificate. Down the road, our date of birth is referenced on our death certificate. When we memorialize our wishes on an estate planning document, making sure our date of birth is a necessity.

Before your confidence begins to climb, making sure a date of birth or DOB for a spouse, children, personal representative, adopted children, and or blended family members are equally identified.

(3) Invalidate Past Wills

Invalidate Past Wills

This drafting issue is not as straight forward. This issue arises with DIY wills and deathbed holographic wills. Sometimes, I see mistakes with codicils too.

Again though, when a person is diligent and they spend time drafting and preparing a valid will, including a statement clarifying a Settlor’s intent is critical.

(4) Self-Proved Wills

Self Proved Wills

When testators and DYI drafters forget about Minnesota statute 524.2-504, it is a bugaboo to overcome. Really, this is a legal threshold for all wills and it cannot be overlooked. Speaking of overlooked elements, can you see a drafting error between the title of this post and the bullet points outlined above?

Numbering issues cause all kinds of problems. Unfortunately, this type of drafting error too can cause major problems when the document is scrubbed by a probate court or court administrator. Perhaps it looks harmless, but this type of drafting error cannot go unnoticed by a probate court and welcomes litigation.

Therefore, before we take matters into our own hands, consider the process of drafting a will a significant step in the administration of our affairs.