October 19, 2025
From a probate lawyer’s vantage point, most will problems are preventable. Courts throw out fewer wills for wording than for execution and coordination errors. Below is a practical list of the most common mistakes we see with a last will and testament in the U.S.—and how to avoid each one with simple, state‑specific steps.
The mistake: Signing with one witness, having a witness leave before signing, or asking a beneficiary to witness in a state that penalizes “interested witnesses.”
The fix: Use two disinterested adult witnesses. Have them present for your signature (or your acknowledgment) and sign immediately afterward. Where available, add a self‑proving affidavit before a notary so your executor won’t have to track down witnesses later.
The mistake: Assuming witnesses will be available years later.
The fix: Execute a self‑proving affidavit at the same sitting. It’s a short notarized statement signed by you and the witnesses that makes the will easier to admit to probate without live testimony.
The mistake: Listing specific gifts but failing to specify who gets “everything else,” which causes partial intestacy.
The fix: Include a clean residuary estate clause allocating percentages with alternates. Keep it short and unambiguous.
The mistake: Naming a single beneficiary, executor, or guardian without backups.
The fix: Always name alternates. Life is unpredictable. Add backup beneficiaries and alternate fiduciaries (executor, guardian, trustee).
The mistake: Crossing out lines or writing changes in the margin of the signed original.
The fix: Use a codicil (executed with full formalities) for small changes or sign a new will for major revisions. Never mark the original.
The mistake: Updating your will but not your beneficiary designations on retirement accounts and life insurance, which pass outside the will.
The fix: Every time you update your will, update designations. The beneficiary form controls those accounts, not your will.
The mistake: Leaving major assets directly to minors.
The fix: Use a minors’ trust in your will (or trust) with a reliable trustee. Authorize distributions for health, education, support, and maintenance; consider staged distributions at set ages.
The mistake: Choosing someone overwhelmed, disorganized, or likely to inflame family tensions.
The fix: Select an executor who is organized, diplomatic, and available. Name an alternate. Provide powers to sell property, settle claims, and handle taxes.
The mistake: Storing the will where no one can find it (or in a sealed bank box), or failing to tell anyone it exists.
The fix: Keep the original at home in a safe, accessible place. Tell your executor where it is and keep a scan for reference.
The mistake: Drafting exotic provisions when simple, proven language would suffice.
The fix: Use a state‑specific will with clear clauses: residuary language, alternates, minors’ trust, and digital‑asset authority. Avoid creativity that invites ambiguity.
The mistake: Writing a will by hand in a state that does not accept holographic wills, or doing so poorly (unclear intent, missing dates, no witnesses).
The fix: Print, sign with two witnesses, and add a self‑proving affidavit. Holographic wills generate litigation; formal wills avoid it.
The mistake: No authority for the executor to access online accounts, email, photo libraries, or crypto wallets.
The fix: Include digital‑assets powers referencing your state’s statute (often modeled on RUFADAA). Maintain a separate, secure inventory of logins and recovery keys.
The mistake: Creating a revocable living trust but not funding it, or failing to sign a pour‑over will.
The fix: If you use a trust, deed real estate into it, retitle non‑retirement brokerage accounts, and align beneficiary designations. Keep a pour‑over will as a safety net and to nominate guardians.
The mistake: Not reviewing the will after marriage, divorce, a new child, a move, a house purchase/sale, or beneficiary life changes.
The fix: Review every 2–3 years or upon life events. Use a codicil for small tweaks; draft a new will for big shifts.
The mistake: Vague descriptions (“my ring”) that cause disagreement.
The fix: Use precise descriptions or a referenced personal property memo you can update without re‑signing the will.
Avoid the pitfalls with a clean, U.S.-state will: Online Last Will & Testament → /product/online-last-will/
Layer in probate avoidance for key assets: Online Revocable Living Trust → /product/online-living-trust/
Diana is a freelance writer that has written extensively in the areas of finance, financial planning and estate planning.
Freelance Writer
Diana is a freelance writer that has written extensively in the areas of finance, financial planning and estate planning.
