The Biggest Mistakes People Make With Their Wills
The obvious one isn’t doing a will at all. But that is just one of many errors people make—often with potentially serious consequences.
The obvious one isn’t doing a will at all. But that is just one of many errors people make—often with potentially serious consequences.
Everybody knows they should have a will, and not having one can leave heirs with a big mess. But just having a will isn’t enough. Big mistakes are common—from leaving decisions to the last minute and failing to update documents to mismatching beneficiary designations.
What follows are some of the biggest mistakes people make when doing their wills, according to attorneys who have seen these missteps far too often.
Of course, thinking about death is uncomfortable, and planning for it can be costly. But to have a say in the distribution of your assets after you die—what each heir will receive, what charities to support and other matters—timely planning is critical. Yet many people either don’t create the proper documents, or they attempt to cobble something together on their deathbed. These last-minute efforts can lead to a host of problems for the simple reason that decisions made in haste leave less time to think through the multiple what-ifs.
Last-minute preparation also raises the likelihood that a disgruntled heir could claim the will was made under duress or in a diminished capacity, says Rebecca Hedaya-Heller, founding partner of Heller & Associates, a law firm in North Woodmere, N.Y.
Another reason not to procrastinate: A document known as a revocable trust, or living trust, can make it possible to distribute assets while you are still living and can be useful if you become incapacitated. A living trust can be especially important in states such as New York, California and Florida that have more restrictive probate laws. Living trusts have other uses as well, such as keeping things out of the public record since trusts are private documents, Ms. Hedaya-Heller says. This means that a family’s affairs can be kept private, including the value of the estate and to whom assets have been given.
When leaving significant money to heirs, people sometimes choose to bequeath it outright, all at once. This can be a mistake, says David Handler, a partner in the trusts and estates practice group at Kirkland & Ellis LLP. Children in their early 20s or 30s, or even later in life, may not be able to handle such windfalls. Giving them unfettered access to it, he says, can be imprudent.
A better option, Mr. Handler says, is to leave the assets to a trust to manage the assets after death. Such trusts also can offer tax and asset-protection advantages to the beneficiaries, he says. For example, they can be designed so that a divorcing spouse or creditor from a lawsuit cannot reach the trust assets. A trust also can be structured to avoid additional estate tax when the assets pass to siblings or children upon the beneficiary’s death, regardless of the trust’s value or the beneficiary’s net worth.
As more people invest in cryptocurrency and NFTs, it becomes critical to ensure someone will have the ability to navigate their digital wallets once they pass away, says Jonathan Forster, partner at Weinstock Manion in Los Angeles. “If you have a digital wallet and no one has that information, the crypto is lost,” he says.
Be sure to keep good records of your cryptocurrency and leave heirs instructions about how to access this information. Don’t store private keys—strings of letters and numbers that allow access to digital assets—on an old, offline computer, for instance, because the hardware could be inadvertently thrown out and the assets lost. Instead, consider using a special device known as a hardware wallet to manage your crypto assets, and make sure heirs know how to find and access the device.
Additionally, people should not include their passwords or private keys in a will itself, which becomes public through the probate process.
Write it and forget it is a common theme for wills. But the documents should be updated every five to 10 years because intentions and circumstances can change over time. “Life happens,” says J. Whitfield Wilks, director at Novare Capital Management, an investment management firm in Charlotte, N.C.
People who have made out their wills years earlier can change their minds about who should get what and which charities to support. Appropriate guardians for children, too, can change over time, which is why periodic reviews are critical. For instance, says Mr. Wilks, 20 years after a will is drawn up, a sibling who was named as executor could be dead or estranged, in a nursing home or otherwise incapacitated.
Even if they have an updated will or living trust, many people forget to update their beneficiary designations on other things—such as pension accounts, individual retirement accounts and other investments, and life-insurance policies. Because a beneficiary designation generally supersedes the terms of a will, there can be unintended consequences. These can include leaving substantial sums of money to an ex-spouse or failing to leave specific assets to a child or grandchild since an original designation may have been made before they were born. “It’s an ongoing process to make sure these things match and your wishes will be implemented,” Mr. Wilks says.
Sometimes wills or living trusts are worded in ways that cause unintended consequences, such as leaving more or less money than desired to an individual or charity.
For example, Mr. Handler says, imagine a man with an estate worth $10 million whose will says to leave $1 million to charity and the rest to his children. Under that scenario, the children would get $9 million. But if the estate’s value drops and is now worth only $4 million, the charity would still receive $1 million and the children only $3 million.
People also have to be careful when leaving a particular stock or bank account to a particular child, he says. When the person dies, if the asset is no longer owned or has dropped precipitously in value, that child could unintentionally be left with nothing or significantly less than their siblings, he says.
Conflicts between heirs tend to happen more often when they are surprised by the contents of wills or trusts, says Mr. Forster, which is why the Los Angeles attorney says he recommends clients be upfront with beneficiaries about their intentions. While these conversations can be hard, having them in advance mitigates the risk of resentment, and possibly litigation, among heirs after a loved one dies.
Mr. Forster offers the example of a mother who was planning to leave a significantly larger share of her estate to her daughter, a teacher. This move would have left her son, a doctor, mostly disinherited. Although the mother loved both her children and was on good terms with both, her estate-planning decisions were based on their respective financials.
Acting on Mr. Forster’s advice, she spoke to the son before drafting the estate plan and was surprised to hear he felt snubbed and unloved, which wasn’t her intent. As a result, she amended her plans, still leaving the daughter more money than the son, but to a lesser extent.
Because the family discussed the situation, the son won’t “have to spend the rest of his life wondering if he did something wrong or whether his mom didn’t love him as much,” Mr. Forster says. “At least they got to have that conversation.”
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Shares in Elon Musk’s rocket maker are set to begin trading at midday Friday.
Elon Musk’s SpaceX is set to make its stock-market debut Friday in the largest IPO ever—and perhaps the most closely watched. The company sold an outsized portion of the offering to individuals. Its performance on Friday will be a crucial gauge of investor appetite for mega-offerings from OpenAI and Anthropic expected later this year.
The rocket maker, which derives most of its revenue from its satellite internet unit and has a nascent artificial-intelligence business, will trade under the ticker “SPCX.” It sold 555.6 million shares at $135 each, raising about $75 billion in a deal that valued the company at roughly $1.77 trillion.
SpaceX executives are set to ring the Nasdaq’s opening bell in New York, but shares in buzzy initial public offerings don’t tend to start trading until later in the day.
Bankers leading an IPO typically want to match buyers and sellers for about 10% of the shares sold before opening trading to lessen volatility. For SpaceX, that would be about 55 million shares, or roughly $7.5 billion worth.
Because pre-IPO investors are restricted from selling shares for a while, it can take time to find willing sellers among those who bought shares in a high-demand IPO.
Shares of Alibaba , the largest U.S. IPO until SpaceX, opened for trading a little before noon in its 2014 offering. Last year, one of the highest-profile offerings was that of software maker Figma , whose shares started trading just before 2 p.m.
It is possible that SpaceX’s bankers will decide to start trading without matching the typical portion of orders to ensure the shares have several hours of trading on their first day, people familiar with the matter say.
Bankers and traders expect SpaceX’s share price could be volatile in initial trading, thanks in part to the large portion of its shares expected to be held by individual investors. Some who anticipate individuals will rush into the shares worry they could just as easily get spooked and rush out.
Any sharp movement in stock price could trigger so-called circuit breakers that could pause trading. For most newly listed companies, a 10% swing in either direction prompts a five-minute pause. Companies that had their shares halted include Figma and Cerebras Systems , the chip company whose shares soared in its May debut.
These forced timeouts applied to single stocks came after the so-called flash crash in 2010, when the Dow Jones Industrial Average fell 700 points in eight minutes before recouping much of the loss.
If the stock starts trading erratically, bankers have a secret weapon to attempt to calm things down.
Underwriters typically sell more shares to investors than an IPO’s total offer size, colloquially called the green shoe. In SpaceX’s case, they sold about 15% more shares than the stated offering size.
Because this means they technically allocated more than the offering amount, the so-called stabilisation agent, in this case, Morgan Stanley , needs to buy back the excess number of shares to deliver them. If the stock starts to fall, the bank will buy the shares in the open market, which helps buoy the stock price. If the stock isn’t faltering, the stabilisation agent can buy the additional shares they need to deliver to investors directly from the company.
The term “green shoe” comes from the first company to employ a version of this method years ago, a shoemaker that was a predecessor to Stride Rite. When Meta Platforms , then known as Facebook, went public in 2012, its shares started dropping and its bankers stepped in to buy more shares.
Like all things Musk, SpaceX’s IPO bucked the norms. Instead of approaching prospective investors with a possible price range for shares ahead of the IPO and incorporating their feedback, the company set an exact share price from the beginning: $135.
The idea was to limit drama for what is already the biggest IPO of all time. It did, however, remove what many see as an important step along the way: price discovery. The success of this approach will partly be judged by how SpaceX’s shares trade Friday. If the stock surges, critics will say SpaceX left money on the table by not pricing shares higher. If the stock falls or trades flat, there will likely be critiques that SpaceX and its advisers overestimated demand.
The sheer size of SpaceX’s IPO will test the trading infrastructure at Nasdaq and could have ripple effects in the broader market.
Nasdaq has practiced with mock openings to make sure its trading platform is prepared. When Facebook went public, some investors who tried to change or cancel orders ahead of trading didn’t get confirmations because of a technology malfunction. The confusion contributed to Facebook shares dropping on the first day of trading. They didn’t return back above their IPO price for more than a year.
Meanwhile, some market watchers expect added activity Friday in stocks that individual investors might sell to buy SpaceX shares, such as those of technology companies and Musk’s electric-car maker Tesla . Such sales already appeared to be under way earlier in the week, when individual investors dumped single-stock holdings on a net basis for two days in a row, according to Vanda Research. (To be sure, those sales came on days that were poor showings for tech stocks broadly.)
It will take several days for SpaceX shares to show up in any major index funds , so the offering’s wider impact on the market could play out over the next several weeks or longer.
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