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 → Online will details
Layer in probate avoidance for key assets: Online Revocable Living Trust → Online living trust details
Related reading: Will Signing: Witnesses, Notaries and Self-Proving; Beneficiary Designations, Wills and Living Trusts; After Downloading Estate Planning Documents.
Prefer guided questions? Prepare a personalised last will with our online document generator.
Once you have made your lists and decided on who is to receive cash or specific gifts, you should also consider the balance or residuary of your estate. Do this, even if you think you’ve distributed everything you possess already. Decide on who will receive that and, if more than one person, the percentage share that each will receive.
From Legal Will Kit, 2026 Fourth Edition — Making Your Will.
Prefer a downloadable guide? Work at your own pace with nine will templates, a planning worksheet, and completion and signing instructions. Use the guide to organise gifts, beneficiaries, executors and guardian choices.
U.S. guidance; not intended for Louisiana. Complex circumstances may need individual legal advice.
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.