Common Mistakes in Will & Trust Drafting and How to Avoid Them (Listicle)
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Drafting a will or trust is a critical step in estate planning, yet many individuals make common mistakes that can lead to legal complications and disputes. This blog post outlines the most frequent errors in will and trust drafting and offers guidance on how to avoid them, ensuring that your wishes are honored and your loved ones are protected. If you need assistance, consider consulting an attorney near you for expert advice tailored to your needs.
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Discover the common mistakes in will and trust drafting and learn how to avoid them to ensure your estate is managed according to your wishes. From not updating your estate plan to failing to fund a trust, this guide provides essential tips for effective estate planning. Need assistance? Find an experienced attorney near you today!
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Illustration of attorney and client reviewing a Will and Trust document, surrounded by icons representing common estate planning mistakes such as unfunded trusts, outdated documents, and DIY templates.
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Mar 27, 2025 11:49 PM
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Common Mistakes in Will & Trust Drafting and How to Avoid Them
Estate planning is one of the most important steps you can take to protect your assets, ensure your loved ones are provided for, and prevent legal complications after your passing. However, many people make critical mistakes when drafting their wills and trusts, which can lead to legal disputes, unintended inheritances, and unnecessary court costs.
Here are the most common mistakes in will and trust drafting—and how to avoid them.
💡 For every post in this series, scroll down to “Related Posts.”
1. Not Having a Will or Trust at All
Many people assume they don’t need a will or trust because they believe they don’t have substantial assets or think their family will manage everything informally. Unfortunately, dying without a will (intestate) means:
- State laws decide how your assets are distributed.
- Your family may face lengthy probate delays.
- Minor children may be placed with a court-appointed guardian.
How to avoid this mistake:
- Create a legally valid will or trust—even if you have modest assets.
- Review and update your estate plan regularly to reflect changes in your life.
- Ensure all documents meet your state’s legal requirements.
Even if you don’t think you need a trust, a will ensures your wishes—not state law—determine what happens to your estate.
2. Using DIY Online Templates Instead of Consulting an Attorney
Online will and trust templates may not comply with state laws and often overlook critical estate planning details. DIY documents can result in:
- Incorrect execution that invalidates the will.
- Failure to account for taxes, creditor claims, or special needs beneficiaries.
- Ambiguous language that creates legal disputes.
How to avoid this mistake:
- Hire an estate planning attorney to draft your documents properly.
- If using online tools, have an attorney review them to ensure legal soundness.
- Follow your state’s requirements for signatures and witnesses.
A poorly drafted estate plan can cost your heirs thousands of dollars in legal fees. It’s worth the investment to do it right.
3. Not Updating Your Estate Plan After Major Life Events
Failing to update your estate plan after key life events can result in:
- Ex-spouses inheriting your assets.
- New spouses or children being unintentionally excluded.
- Executors, trustees, or guardians who are no longer suitable.
How to avoid this mistake:
- Review and update your plan every three to five years or after major life changes, such as marriage, divorce, the birth of a child, the death of a beneficiary, or significant financial changes.
- Update beneficiary designations on life insurance, retirement accounts, and bank accounts.
Outdated estate plans are a leading cause of inheritance disputes.
4. Failing to Properly Fund a Trust
Creating a revocable living trust but not transferring assets into it means:
- The trust controls no assets and is ineffective.
- Your estate may still go through probate.
How to avoid this mistake:
- Retitle your bank accounts, real estate, and investments in the trust’s name.
- Work with an estate planning attorney to ensure asset transfers are handled correctly.
- Review your assets regularly to confirm they are properly titled.
A trust that isn’t funded serves no purpose. Make sure your assets are included.
5. Naming the Wrong Executor or Trustee
Choosing an executor or trustee based on family dynamics rather than competence can result in:
- Financial mismanagement.
- Delays in distributing assets.
- Family conflicts and potential lawsuits.
How to avoid this mistake:
- Choose someone responsible, organized, and financially literate.
- If family conflict is a concern, consider appointing a professional trustee.
- Always name a backup executor or trustee.
Serving as executor or trustee is a significant responsibility. Select someone with the right skills and temperament.
6. Not Including Contingent Beneficiaries
Only naming a single beneficiary can lead to complications if that person dies before you. In that case:
- The court may decide who inherits your assets.
- Your estate may go to unintended heirs.
- Your estate may face lengthy probate proceedings.
How to avoid this mistake:
- Always name contingent beneficiaries in your will, trust, and financial accounts.
- Review and update your beneficiary designations regularly.
If your primary beneficiary dies and you don’t update your plan, your estate could be distributed according to state law.
7. Forgetting to Include Digital Assets
Many people fail to account for digital assets in their estate plan. This can result in:
- Loss of online financial accounts.
- Unclaimed cryptocurrency, NFTs, or other digital investments.
- Locked social media or email accounts that contain important information.
How to avoid this mistake:
- List your digital assets and provide access instructions.
- Appoint a digital executor.
- Include directions on how to manage and distribute digital assets.
Digital assets are often overlooked but can be valuable and need to be included in your estate planning strategy.
Final Thoughts: Avoid Costly Estate Planning Mistakes
Estate planning mistakes can lead to long delays, legal battles, and outcomes that do not reflect your wishes. Taking the right steps now will help ensure your estate is distributed according to your intentions and provide peace of mind for your loved ones.
Key takeaways:
- Create both a will and a trust.
- Work with an experienced estate planning attorney.
- Update your plan after major life events.
- Fund your trust properly.
- Choose capable executors and trustees.
- Include contingent beneficiaries.
- Address digital assets in your plan.
Need help drafting or updating your estate plan? Visit ReferU.AI to find a trusted estate planning attorney near you.