Of all the mistakes you can make when writing a will, I've made the biggest and baddest of them all.
When I was pregnant with our second child, my husband and I decided it was time to write our wills so nothing would be left to chance if our children were unexpectedly left without us.
We scouted out a local estate lawyer and asked him to prepare two simple wills. With the children's welfare in mind, we made sure to name a responsible guardian in case we both died while they were young. What we really didn't think about, however, was ourselves.
I vaguely remember, in my exhausted and scatterbrained state, that the lawyer talked about the importance of assigning power of attorney - someone to make decisions on our behalf in the event that we became incapacitated. We promised to get right on that, and then promptly forgot as more pressing concerns arose, such as whether we could get by with two kids in diapers and only one changing table.
It wasn't until last week, when I was doing research for an article about will mistakes, that the power of attorney issue arose again.
I had been talking with Les Kotzer and Barry Fish, two wills lawyers who have co-written some books on estate planning, including their latest, Where There's an Inheritance ... Stories from Inside the World of Two Wills Lawyers . Mr. Kotzer is a chatty guy when it comes to wills. He specializes in avoiding disputes over estates and even has a CD of songs he wrote on the subject. He asked me the power of attorney question, and suddenly I was getting a second lecture about what could happen if I didn't assign someone to take on this important role.
Mr. Kotzer told me that even though my husband and I are joint owners of our home, if my husband becomes incapacitated and hasn't named me as his power of attorney, I no longer have the right to sell or refinance my home. And just because we're married doesn't mean I have the right to make financial decisions for him without power of attorney.
Failing to assign power of attorney is mistake No. 1, according to the new book The 50 Biggest Estate Planning Mistakes ... and How to Avoid Them by estate-planning experts Jean Blacklock and Sarah Kruger. Other common errors include:
- Placing too much trust in your delegated financial decision maker
- Avoiding making a will by using beneficiary designations and joint ownership of assets
- Leaving behind a handwritten or will kit will instead of retaining professional assistance
- Neglecting to update your will as you enter marriage or a committed relationship
- Not updating wills to reflect the life stages of your children
- Trying to change your will by writing on the original or a copy of the will, or using too many codicils
With all this in mind, I decided to pay Mr. Kotzer a visit, papers in hand, to see whether there were any other gaps in my will.
It turns out there are other problems: First of all, I'm missing the "mutual disaster scenario" clause, which stipulates what happens to my estate if all four of us die at once. Without that clause, the government will decide who gets what.
Second, I've named my son as a back-up executor when he turns 18, which is a huge responsibility for a teen, Mr. Kotzer says. I've also set 18 as the age at which our children can inherit our estate. That would put my son in the position of being the trustee for my daughter's inheritance until she turns 18 -- a situation that could lead to conflict between my kids and the risk that they could blow my hard-earned dollars on such teen essentials as electronics and clothes.
And third, I've named my children's guardian as a back-up executor, which creates a potential conflict of interest over how he would spend my money to care for my children until they receive their inheritance.
I was surprised, to say the least, to learn how many mistakes I had made in my will. If you're unsure how solid your own will is and you want to explore what you might be doing wrong, Mr. Kotzer's firm, Fish and Associates, provides will reviews as a free service. You can reach him at 1-877-439-3999.
Also, you can join me on Thursday, Sept. 30, at 11 a.m. (ET) for an online discussion with Ms. Blacklock, co-author of The 50 Biggest Estate Planning Mistakes. You can read an excerpt from the book here. Ms. Blacklock will answer any questions you have about your will.
There's a good reason we write wills: They provide us with peace of mind, knowing that we've settled our affairs and taken care of our loved ones. When done correctly, wills are well worth the time and money we invest, which is why I'll be digging out my lawyer's card today to fix the mistakes I've made.