Creating a Last Will and Testament (Will) is one of the most important steps you can take to secure your future, protect your loved ones, and ensure your wishes are adequately carried out after you pass. Unfortunately, many people make critical mistakes when either drafting their own Wills, or when utilizing an attorney that doesn’t regularly practice in the area of estate planning and probate law. These errors can lead to unintended consequences, such as costly legal battles, unintentional or incorrect distributions, or even having a Will declared invalid and rejected by the probate court. To help you avoid these pitfalls, this legal blog post outlines the top mistakes people make when creating a Will, and how our office can help you avoid them with the proper guidance.

1. Not Updating Your Will After Major Life Changes

Many people create a Will and incorrectly assume that it is a one-time transaction. However, proper estate planning is a fluid process, and requires that your plan be updated whenever you experience significant changes. We recommend that clients revisit their estate plan every 3-5 years to ensure that their plan still accurately represents their wishes, and aligns with any newly enacted state laws or applicable tax implications. More specifically, a Will should be reviewed and updated with your attorney anytime you experience a major life event, such as:

• Marriage or divorce
• Birth or adoption of a child
• Death of a beneficiary or Personal Representative named in the prior Will
• Purchasing a home or major asset
• Changes in your personal relationships

The aforementioned life events can have monumental estate planning implications. Failing to keep your Will up to date can result in unexpected issues that will create complications for your loved one down the road. For our detailed legal blog post outlining when to update your estate planning documents, please click here.

2. Distributing Specific Assets Based on Current Values

Sometimes we see people try to assign specific assets to their loved ones based on the current values of those assets. For example, let’s say the decedent specified in her Will that child #1 would receive her jewelry collection valued at $250k, and child #2 would receive her house which she recently purchased for $250k. While both of these assets were roughly the same in value at the time the decedent executed her Will, it is very unlikely that these assets will be the same at the time of her death. While your intent was to split your assets evenly among your two children, your Will was drafted incorrectly by devising the assets individually. In this example, if the decedent died 10 years later, her home could very well be worth over $500k, while the jewelry collection is relatively unchanged. Failing to account for potential appreciation or depreciation of an asset can have devastating effects after you pass. It will cause unnecessary legal battles between your children, costing them thousands of dollars in legal fees, and irreparable harm to their relationship.

Instead, be sure to use percentages to ensure that your assets are split exactly as you intended. We can assist you with the proper language that will direct all assets be sold first, with the proceeds being split based on percentages to your intended beneficiaries. Based on your unique circumstances, it may make sense to utilize what is called a Pour-Over Will accompanied by a Revocable Living Trust. A Pour-Over Will is designed as a catch all to automatically transfer all of the decedent's assets into the Trust. This provides the added benefit of avoiding probate altogether and keeping your asset distributions completely private and out of public domain. For our extensive guide outlining everything to know about Wills and Trusts, read our legal blog post here.

3. Not Naming a Successor Personal Representative

Your Personal Representative is fiduciary named in your Will that is responsible for carrying out and administering your estate, and ensuring that everything is distributed correctly. For an overview of all the parties involved in your estate plan, click here to read our “Who’s Who.” Some people name just one Personal Representative—often a spouse or close relative. But what happens if that person predeceases you or becomes incapacitated? Then the decision as to who will serve as your Personal Representative will be left to a Massachusetts Probate Court Judge.

Avoid this mistake by naming what is called a successor Personal Representative. In your Will, you can name as many successor Personal Representative’s as you see fit. This ensures that your Will has a contingency plan if someone is unavailable to fulfill their fiduciary role. Some people also opt for naming Co-Personal Representatives. This allows you to name multiple fiduciaries to work alongside each other in carrying out your estate, and if one predeceases or is unavailable for any reason, the other will serve alone. This can be a good option only in certain situations. For a detailed overview as to potential complications that can arise from appointing Co-Personal Representative or Co-Trustees, read our full legal blog post here.

4. Leaving Assets Directly to Minor Children

Many parents and grandparents want to leave assets to their children or grandchildren, but naming a minor child as a direct beneficiary can create legal complications.

Why It’s a Problem:

• In Massachusetts, minors cannot legally manage inherited money until they turn 18. If a Will leaves assets to a minor, additional steps will have to be taken when filing probate, one of which is petitioning the court for the appointment of a Guardian Ad Litem (GAL) to act in the best interest of the minor child.
• The appointment of a GAL will result in additional legal fees, and significant delays in making distributions from the estate. Assuming a GAL is assigned, they must comply with any court orders, which typically mandate any inheritance be held in a UTMA account, which may or may not be the most financially prudent investment vehicle to hold the inheritance.
• The other concern comes once the child does turn 18. Upon their 18^th birthday, they receive full control of their entire inheritance. This can create major complications when funds are left to a financially illiterate or immature young adult, often resulting in the inheritance being dried up in a short amount of time.

How to Avoid This Mistake

Instead of naming a minor child as a direct beneficiary, the best option that provides the utmost clarity after you pass is the creation of a Revocable Living Trust during your lifetime. As Settlor of the Trust, you will retain full control of any Trust assets during your lifetime, with the flexibility to revoke or amend any terms of the trust while you are alive. You will then name a Trustee(s) to serve after your death. This Trustee is responsible for holding the assets and making distributions to your named beneficiaries based on the terms of the Trust. This grants you, as Settlor of the Trust, even greater control of not only who will inherit your assets, but when they will receive them.

For example, you can structure the Trust so that your child or any minor beneficiaries receive only a portion of the assets at certain ages—such as 25, 30, or even later—helping to ensure that they are mature enough to handle the funds responsibly. Or instead of making distributions dependent on age, you could incorporate conditions that must be met in order for a beneficiary to receive their distribution. This makes the Trust act as a motivational tool for any minor beneficiaries. For example, a trust could be structured to distribute funds upon the child’s graduation from college, the birth of their own child, or the purchase of a first home. This method not only provides financial support but also encourages responsible life choices and personal growth.

5. Not Considering Estate Taxes & Probate Costs

Many people aren’t familiar with the Massachusetts estate tax exemption, which is currently set at $2 million dollars. This means that if your total estate assets exceed the $2 million dollar threshold, then an estate tax return will be due following your death. This results in your beneficiaries receiving less, and only what is left after taxes. One strategy to reduce your total taxable estate is to utilize gifting during your lifetime. You can gift up to the annual federal gift tax exclusion limit of $19,000 per recipient in 2025 (or $38,000 for married couples) without incurring gift taxes (up from $18,000 per individual and $36,000 for married couples in the 2024 tax year). Money paid as a gift is no longer considered a part of the donor’s estate and thus does not count towards the Massachusetts estate tax exemption of $2 million.

We also recommend working with an experienced estate planning attorney, such as those Lane, Lane & Kelly in Braintree, Massachusetts, if you have assets greater than this exemption and wish to incorporate the most legal and tax efficient strategies to maximize how much you will leave to your beneficiaries, rather than the Commonwealth of Massachusetts. Our team has years of experience creating different types of trusts to aid our clients in minimizing how much is due on their estate tax, or eliminating the estate tax altogether.

Many people also overlook how expensive the probate process can be. Not only does filing probate result in court fees and legal fees to be paid by the estate, but it can also result in significant delays of months or even years before beneficiaries can receive their inheritance. This is another advantage of incorporating a Revocable Living Trust in your estate plan. Any assets held in Trust bypass probate altogether. This not only simplifies asset distribution following your death, but it completely eliminates any court fees, legal fees, or carrying costs associated with holding assets while an estate is working its way through the probate process.

6. Listing Assets in Your Will that Should Not be Included

There are certain assets that should not be left in a Will. These include any assets where a designated beneficiary can be named directly within the account. For example, things like retirement accounts, checking/savings accounts, insurance policies, annuities, etc. This also includes any assets that are held in joint tenancy with rights of survivorship (or as tenants by the entirety for married couples). For more information on all of the ways to hold title in Massachusetts, please read our legal blog post here. These assets should be left out of your Will because all assets with named beneficiaries will be transferred directly upon death, without any need for probate. Massachusetts allows what are called "Payable On Death" (POD) designations for your individually-held bank accounts. This allows the named beneficiary to claim the money directly from the bank without any probate court proceedings. All the named beneficiary has to do is call the institution or walk into the bank and present a certified copy of the Death Certificate, and they can receive the funds immediately. Only assets owned in the decedent's individual name will have to go through the probate process.

7. Using a DIY Will Instead of Working with an Experienced Attorney

With the rise of online legal services, many people are tempted to trade small fees in exchange for an online DIY drafting platform to assisting them in the creation of their Will. While these options may seem convenient, they often fail to account for state-specific laws, unique family situations, and they fail to comply with Massachusetts Will requirements for legally-adequate execution. For our full legal blog post outlining the importance of personalized estate planning and why you should be cautious of online platforms, click here.

Why It’s a Problem:

• Many DIY Wills lack the proper legal language, and lack the necessary legal expertise needed for your unique situation. They don’t account for your unique family situations, your assets, tax implications, or state specific Will requirements. When it comes to your legacy and ensuring your assets are smoothly transferred to your loved ones, you deserve a personal touch that only an experienced and local estate planning attorney can provide.
• Most online platforms utilize templated, one-size-fits-all Wills. Executing a Will in Massachusetts requires far more thought and consideration than simply filling out a generic form and having a software, or AI, spit you out a Will. Like the age-old adage, sometimes you get what you pay for. While it will save you money now, it will cost your loved ones later on when they inevitably encounter legal difficulties, probate delays, and unnecessary legal and court costs.
• They don’t comply with Massachusetts execution requirements. Most online platforms are technology companies based in states like California. We have even seen estate planning documents that reference California law despite the Testator being domiciled in Massachusetts. Most importantly, Massachusetts Will requirements are explicitly outlined in M.G.L.c. §2-502, which require that a Will be:

1. In writing;
2. Signed by the testator or in the testator's name by some other individual in the testator's conscious presence and by the testator's direction; and
3. Signed by at least 2 individuals, each of whom witnessed either the signing of the will as described in paragraph (2) or the testator's acknowledgment of that signature or acknowledgment of the will.

While it is not specifically required in the statute, many Probate Courts also encourage people to have their Will notarized, and signed in the presence of a notary public along with the necessary two witnesses. Yet most online software’s allow you to e-sign your Will, or encourage you to print it out and sign it yourself, without ever instructing you on state-specific laws and execution requirements.

The best and only way to ensure that your Will is legally sound and tailored to your needs is to work with an experienced estate planning attorney. At Lane, Lane & Kelly, LLP, we specialize in personalized estate planning services tailored to the unique needs of our clients across the Greater Boston area and all throughout the South Shore of Massachusetts. Since 1938, we have provided clients all over Eastern Massachusetts with the dedicated and personalized approach that Estate Planning requires. With over 80 years of experience, we’ve earned a reputation for excellence, consistently being voted the top law firm in the South Shore by the Patriot Ledger. Most recently, Lane, Lane & Kelly, LLP was named as the top law firm in the 2024 South Shore Community Choice Awards, and Managing Partner, David B. Lane, was named as the top Attorney in the 2024 South Shore Community Choice Awards. Don’t leave your legacy to chance. Let us provide you with the ultimate peace of mind that you and your family deserve.

Contact Us Today to Avoid These Common Pitfalls

Creating a Will is a crucial step in protecting your family, your assets, and your loved ones. These common mistakes can cause unnecessary legal complications, incur significant costs, and substantial delays. At Lane, Lane & Kelly, we're committed to guiding you through every step of the estate planning process with care and expertise. From drafting your Will to setting up trusts and navigating your complex legal matters, our experienced team is here to provide the personalized attention and comprehensive support that you deserve. Contact Lane, Lane & Kelly to secure your legacy today.

This blog is made available for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By reading this blog you understand that there is no attorney client relationship between you and Lane, Lane & Kelly, LLP.