Wills are very important legal documents that need to be written properly. It contains the last wishes of a person regarding how he or she wants his property divided or disposed of when they die, so they should be written in the clearest and most unambiguous manner.
The biggest mistake that people make when it comes to writing their will is writing one that is not thought out and using ambiguous and confusing terms. Some common terms that people use are “I give to,” “I’ll make this up,” or simply indicate a name and an asset that they own. At first glance, it looks straightforward enough, but this brings about problems in the probate court when it’s time to enforce the division of the estate.
Two Common Problems When There is Ambiguity in the Will
When the will is not written clearly, there are two common problems that can arise for the probate court:
- Confusion as to the type of asset to be given.
- What happens to the bequeathment if the asset is no longer available.
- Lack of instructions if the person named in the will has passed away.
Confusion on the Asset
If the will is not clearly and specifically written, there will be a problem in determining the exact property that should be handed down to the named beneficiary. This is especially true if the will was not updated to reflect the most current situation or assets of the deceased.
For example, a person writes on their will “Jane Smith, my truck.” They wrote this will a long time before they passed away and the will is, say, 20 years old. Since the time the will is written and the time it becomes effective, the person writing the will did not have the same truck. So the issue is that the person was not more specific in terms of what truck should be given. A better way to have indicated it would have been “To Jane Smith, I give the truck that I have at the signing of this will.” or “I give the 1992 Chevy Blazer that I have at the signing of this will.”
Lack of Alternatives if the Asset is No Longer Available
People also make the mistake of not indicating alternatives in case that asset is no longer under their ownership at the time of their death. So the probate court will have questions such as:
- If they didn’t have this exact vehicle, what do they mean otherwise?
- Will the bequeathment be cancelled or do they get something else?
- Do they get whatever vehicle the deceased happened to have at the time of their death?
- What if the deceased downgraded to a sedan or another vehicle?
- Did they mean any vehicle?
An ambiguous will without any of the specifics will raise a lot of confusion for the probate court. This can delay the proceedings or even worse, cancel the bequeathment of the asset if the court sees fit.
A better way to write this in the will would have been: “To Jane Smith, if she survives me, I leave the 1992 Chevy Blazer that I own at the time of the signing of this will. If I no longer own this truck at the time of my death, I give any vehicle I own/ the truck I own, if I own a truck. If I don’t own a truck, this shall lapse.” or “If I don’t own a vehicle/ a truck at the time of my death, I give her $10,000.”
The person writing the will should be able to envision every scenario that can happen between writing the will and the time it is enforced. They have to bring the will to its conclusion. This will leave no doubts as to what has to be done with the assets.
Lack of instructions in case of the death of the beneficiary
Also commonly neglected are situations wherein the named beneficiary passes away before the person writing the will. Most people only indicate one beneficiary for each particular asset. Should that named person pass away before or at the same time as the deceased, there will be questions as to where the asset goes now.
This is something that the will should indicate in clear and unambiguous terms. It should say something like, for example, “If Jane Smith does not survive me, this gift shall lapse,” or “If Jane Smith does not survive me, it goes to her children,” or “If Jane Smith does not survive me, $10,000 shall be given to charity.”
These need to be clearly indicated to avoid a risky document that will face issues in the probate court. It lengthens the process because the parties involved will have to come to a judicial settlement agreement, which is an expensive endeavor for one, poorly-drafted sentence.
These are the most common problems that are found in wills, especially those DIY ones that were not written with the assistance and advice of a competent estate lawyer. That’s why it’s important for everyone to have a lawyer helping them draft their wills clearly, legally, and specifically.