Craig's Corner - Wealth Planning Insights

Monday, November 14, 2016

The Pitfalls of Invalid Wills

What are the reasons a will might be invalid?

Once you've taken the leap into estate planning by preparing a will, it is crucial to ensure the document is valid. Let's take a look at some common reasons why a will might be invalid.

Improper Execution

First, a will may be deemed invalid if it is not properly executed. In Nevada, it is not necessary for a will to be notarized, however, it must be signed before two witnesses - individuals who are not named in the will. The witnesses must also sign the will.

Lack of Testamentary Capacity

Another reason a will may not be valid is if the person making the will - the testator, lacks capacity. Generally a testator must understand the effect of the will, and the extent of the property included in the estate. However, individuals at the end of life may not be in the best state of mind. If a person is suffering from dementia or incapable of understanding the will for another reason, the court may find the individual lacks testamentary capacity.

Poor Drafting

For a will to be valid, it must be properly prepared and contain certain provisions. For example, the document must state that it is intended to be a will and that the testator understands the reason for the will. There must be a clear statement about the testator's wishes regarding how his or her property is to be transferred. Lastly, there should be a provision naming an executor who is responsible for enforcing the terms of the will.

Undue Influence/Fraud

The court will invalidate a will that is executed under undue influence, coercion or fraud. Undue influence can occur when a beneficiary or caregiver pressures the testator into making or modifying a will. If will has been presented to a testator as if it were a power of attorney or other document, then the will was fraudulently obtained. In these situations, the court will invalidate the will.

Replacement by a Later Will

It is not uncommon for individuals to make changes to an estate plan by writing a new will. In this case, any wills that were previously made are invalid. While the newest will takes precedence, will contests often arise if there have been significant changes to a distribution plan or the named beneficiaries.

The Takeaway

Many people make the mistake of preparing a will on  their own, and some even rely on form documents downloaded from the internet. The best way to ensure your will is valid, that your assets will be protected, and your wishes carried out, is by engaging the services of an experienced estate planning attorney.

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S. Craig Stone II of Stone Law Offices, Ltd. serves clients throughout Clark County, Southern NV, Las Vegas, Henderson, Boulder City, North Las Vegas, Summerlin, Carson City, Reno, Washoe County, and Nye County. Also serving clients with asset protection nationwide.

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