Posted on Sep 16, 2015 by Catherine H. Kennedy
As a long-time practitioner in wills and estates and a former South Carolina probate judge, I’ve seen a lot of wills. Unfortunately, I’ve also seen many mistakes that create problems for loved ones at this difficult time or that undermine the intentions of the deceased.
Here are the most common mistakes I’ve seen, and all are easily avoidable.
It’s dangerous to draft your own will
Even before software, many people bought forms for wills at office supply stores, confident that they could just fill in the blanks and save attorneys’ fees. The consequences of these do-it-yourself wills sometimes are tragic.
The problem is that there are many laws that affect the validity of provisions in wills that only an attorney with experience in this area will know. Some of them are state-specific.
For example, what if the will leaves a monetary amount to Cousin Sue, and Cousin Sue ends up dying before the testator (the person who wrote the will)? Did the testator want the money to go to Cousin Sue only, or did he want Cousin Sue’s children to inherit if Cousin Sue was not living? Without a provision requiring Cousin Sue to survive, her children inherit the bequest. The result would be different if the bequest were to Pastor Faith (a non-relative).
I’ve also seen wills that left shares to “my brothers and sisters.” In South Carolina, half-siblings are treated the same as whole-blood siblings. Did the person writing her own will intend to include her half-siblings who were 20 years older?
Wills seems simple on their face, but laypersons – and even a lawyer who doesn’t have experience in this area of the law – can be blindsided by what they don’t know.
Proper Execution is important
All wills must be property signed and witnessed to be effective. For example, South Carolina requires two witnesses for a will to be valid. A notary is not sufficient, or even required.
Also it is important to have impartial persons as witnesses. One reason is that the witness may have to testify about the competence of the testator. Another reason is that having an “interested” witness may invalidate the bequest to the beneficiary who serves as a witness.
I’ve seen a case where one of the two witnesses was the testator’s sister, who was also the sole beneficiary in the will. The testator had children who were not named in the will. But, under South Carolina law, because the sister was a witness, she can only take what she would receive if there were no will – call the law of intestacy. In this instance, the sister received nothing because the children were the only ones who inherited without a will. So in that situation the will was valid, but due to having prohibited witnesses, it did not accomplish its intended effect.
For various reasons, children or other close relations sometimes are left out of a will. It’s just human nature for the person writing the will to want to offer an explanation. She may say one child never came to visit or has a drug habit or doesn’t need the money because he doesn’t have children.
Such language invites a challenge. What if the child was prevented from coming to visit by the other children or there was a misunderstanding about his drug habit? What if he now has children? Don’t offer a toehold to someone who might challenge the will. Just say “for reasons known to me,” and let the survivors speculate on the intentions.
One more note on leaving people out of a will. You can leave anyone out except a spouse. Under South Carolina law, a spouse has an elective right to one-third of the property that passes under the will. Sometimes people in second marriages who both have their own substantial assets and children may agree to leave each other out of their wills. But absent a signed agreement, this elective right remains, and can create complications and hurt feelings if a spouse elects to exercise it.
I’ve seen wills that create confusion because the assets no longer exist as they were identified. A person may leave the savings account at the First National Bank to a grandchild. What happens if First National no longer exists? Do we try to trace what happened to that money? Do such records even exist? The law doesn’t provide clear guidance on this situation and it can set the stage for litigation.
Review your will every few years. If money was moved from First National to a new account at First Trust, update the will to reflect this. Or, better yet, just leave the beneficiary a specific amount without indicating the source of the funds.
Choose the right representative
In South Carolina, an executor is called a personal representative, and people often select someone who just isn’t suited by skills or temperament to handle such a responsibility. It can take a lot of time and patience to handle these duties, which can include disposing of assets, paying debts, clearing out a home, answering questions from relatives and interacting with a probate court. Select someone – or more than one person – who is trusted both for integrity and the ability to get the job done.
Very few wills are successfully contested, but improperly written wills frequently are troublesome for families and can alter the intended distribution of assets. Almost every problem can be avoided if a lawyer with experience in wills reviews the will every few years.
And if you don’t have a will, just remember that the State of South Carolina has written one for you — and it may not be the one you want. Don’t rely on either the laws of intestacy or do-it-yourself software to carry out your wishes.
Catherine H. Kennedy was a probate judge for 12 years in Columbia, SC. Now in private practice at Turner Padget, Kennedy utilizes skills gained as a judge in representing individuals and fiduciaries in complicated probate and trust matters. A former teacher, she enjoys explaining complicated estate and tax concepts in understandable terms. She may be reached at (803) 227-4367 or by email at firstname.lastname@example.org.