Drafting a last will and testament is a crucial component of estate planning, ensuring the smooth distribution of your assets and wishes according to your intentions after your demise. You’ve got to exercise caution and refrain from including certain elements in your will, as they can lead to complications, delays, and potential legal disputes.
The last will and testament form the foundation of an estate plan, providing a mechanism to strategize for the posthumous administration of your estate. Despite its simplicity, it is crucial to exercise prudence and refrain from including specific items in your will. By doing so, you can accelerate the inheritance process for your beneficiaries. Upon your demise, the will must undergo probate in a court of law, a process that necessitates time and effort. Including unnecessary elements in the will may prolong the probate process or even invite challenges to the will’s validity.
Additionally, it is essential not to include anything in your will that you do not own outright. Assets jointly owned with another individual will typically pass to the surviving co-owner upon your death. This is particularly common in community property states, where property acquired during marriage is considered joint property. To avoid confusion and ensure a smooth distribution of your estate, such jointly owned assets should be omitted from your will. These and other points will be discussed as 8 things not to put in your will,
Types of wills
In order to effectively understand the 8 things not to put in your will, it’s essential to understand the different types of wills and their characteristics:
- Living Will: Also known as an Advance Healthcare Directive, it goes beyond a traditional Last Will and Testament, allowing individuals to express their medical care preferences in case of incapacitation.
- Testamentary Trust Will: Written inside a Will, it directs asset distribution after death and forms a trust only upon the individual’s passing, making it suitable for long-term care planning.
- Pour-Over Will: Works in conjunction with Revocable Living Trusts, offering more privacy and “pouring over” assets not directly assigned to beneficiaries into the trust.
- Simple Will: Basic and straightforward, it includes clauses for designating guardians for minors and appointing an Executor.
- Joint Will: A single document for two individuals, often used by spouses to initially benefit each other and then their children as final beneficiaries.
- Deathbed Will: Created under dire circumstances, it is often questioned for effectiveness and mental stability due to its timing.
- Online Will: This is a newer concept that allows individuals to create a will online through trustworthy sources, but caution is advised when choosing DIY platforms.
- Holographic Will: Handwritten wills are less common and usually result from extreme situations like war or life-threatening circumstances.
- Nuncupative Will: A verbal expression of final wishes, recognized in some states under specific conditions, but not as widely accepted as written wills.
8 things not to put in your will
Drafting a will is a crucial part of preparing for the future, but it’s equally important to be aware of the 8 things not to put in your will, hence what should be excluded from the document.
By avoiding these eight essential elements, you can ensure that your final wishes are executed smoothly, reducing any potential confusion, delays, or disagreements among your beneficiaries.
To create a comprehensive and legally valid estate plan, it’s advisable to consult with a knowledgeable attorney specializing in estate planning. Following these precautions will grant you the assurance that your legacy will be handled with utmost care and adherence to your intentions. Planning ahead can ease the burden on loved ones and ensure that one’s wishes are respected after passing away, leaving a loving legacy for family members.
1. Funeral Arrangements
While it is crucial to communicate your funeral and burial wishes to your loved ones, the will is not the appropriate place to do so. Typically, wills are not read until after the funeral, so it may be too late for these instructions to be carried out.
Instead, inform your family members or appointed representatives of your wishes well in advance to avoid any misunderstanding. This ensures that your funeral and burial preferences are promptly addressed without relying on the will’s processing time.
2. Specific Funeral Funds
Leaving money specifically designated for your funeral expenses in your will can lead to complications. It may take time for the will to be probated, and the funds might not be available immediately.
This could burden your loved ones, who may need to pay the expenses upfront. A more efficient approach would be to set up a payable-on-death (POD) account or a separate funeral trust for these purposes. Doing so ensures that the necessary funds are accessible immediately after your passing, reducing financial stress on your family.
3. Conditional Gifts
Avoid placing conditions on your gifts in the will. For example, stating that a beneficiary will receive a certain sum of money only if they marry a specific person or pursue a particular career path can lead to legal battles and unnecessary tensions among your loved ones.
It is best to make unconditional bequests to ensure a smooth distribution process. By providing unconditional gifts, you eliminate potential conflicts or disputes, allowing beneficiaries to receive their inheritances without any restrictions.
4. Digital Assets’ Details
In today’s digital age, it is crucial to account for your online presence and assets. However, including login credentials and passwords in your will is not advisable due to potential security risks.
Instead, create a separate document containing this information and provide access to a trusted individual. Many online platforms now have provisions for managing digital assets after death, so familiarize yourself with their policies. Separating digital asset information safeguards against unauthorized access and ensures that your digital estate is managed securely.
5. Pet Care
While it is commendable to be concerned about the well-being of your pets after you’re gone, a will might not be the best place to address this matter. The document could take time to be processed, and your pets would need immediate care. Consider setting up a trust for your pets or directly assigning a guardian who can look after them without delay.
This proactive approach ensures that your beloved pets receive the necessary care and support without any delays or legal complications.
6. Jointly Owned Property
Assets held jointly with rights of survivorship, such as jointly owned properties, do not typically pass through a will. They automatically transfer to the surviving co-owner upon your death. Therefore, it is unnecessary to include such properties in your will as it may lead to confusion. By excluding jointly owned property from the will, you avoid potential misunderstandings regarding its distribution and ensure a seamless transfer of ownership to the surviving co-owner.
7. Retirement Accounts and Insurance Policies:
Assets with designated beneficiaries, such as retirement accounts (e.g., 401(k)s, IRAs) and life insurance policies, should not be included in your will. These assets pass directly to the named beneficiaries, regardless of what your will states. Make sure to keep beneficiary designations up to date to ensure they align with your wishes. Clarifying beneficiary designations separately from the will guarantees that these assets are distributed according to your preferences without being subject to the probate process.
8. Business Succession Plans
If you own a business, a will might not be the most appropriate place to outline the succession plan. Business transfers involve complex legal and financial considerations that are better addressed in a separate business succession plan. Consult with an attorney to ensure a smooth transition for your business and its stakeholders.
By creating a comprehensive business succession plan outside the will, you safeguard the business’s continuity and facilitate a seamless transfer of ownership or management according to your wishes.
What You Should Put in Your Will
Having learned about 8 things not to put in your will, it’s crucial to know what to put in it. Your Last Will and Testament is a valuable instrument that enables you to outline the distribution of your estate after your passing.
Many individuals utilize Wills to specify which possessions should be bequeathed to their loved ones, often within their family circle. For instance, if you own a grand piano and wish for your niece to inherit it upon your demise due to her interest in it, you can include this provision in your Will.
Here are the essential items that you can and should incorporate into your Will: your basic personal details, legally binding language indicating your testamentary intentions, the appointment of an executor, and the designation of a guardian for any pets or underage children. You may also want to explore a Will preparation checklist to gain further insights into how to draft your Will, along with a helpful checklist encompassing all the necessary inclusions.
There are several reasons not to include certain items in your Will:
- Business interests: Avoid including business interests in your Will due to probate delays and potential contestation. Consult an attorney for a better succession plan.
- Personal wishes: Specific funeral instructions are best relayed through a letter of instruction to avoid conflict since will go through probate after the funeral.
- Beneficiary with special needs: Instead of a Will, set up a Special Needs Trust to support your loved one without jeopardizing government benefits.
- Property to avoid probate: Consider transferring property to a trust to bypass probate proceedings.
- Certain types of property: Omit assets with beneficiary designations or placed in a family Trust from your Will.
In conclusion, it is imperative to exercise caution when including certain elements in your will. To ensure a smooth and effective distribution of assets, avoid incorporating joint tenancy property, which automatically transfers to the surviving joint tenant outside the will.
Likewise, exclude property held in a living trust, as it already bypasses probate, rendering duplication unnecessary. Assets with beneficiary designations, such as life insurance, retirement plans, and other designated accounts, should not be listed in the will, as they operate independently. Likewise, property with payable-on-death beneficiaries should be omitted.
Funeral instructions are best settled before probate, and thus should not be included in the will. Avoid conditional gifts, as they may lead to unforeseen consequences or legal complications. Instead, address the care for individuals with special needs through specific trusts to preserve their benefit eligibility.
Gifts to pets present a unique situation, as animals cannot legally own property. To address this, consider setting up a pet trust or designating a caregiver for their care and well-being. Furthermore, tax avoidance provisions are better managed through trusts than wills.
Lastly, avoid any illegal conditions or purposes for gifts in the will to ensure its validity and enforceability. Keep in mind that even valid will undergo probate, but they expedite the process by clearly outlining your wishes for property distribution. By meticulously avoiding these elements, you can construct a robust and legally sound will, safeguarding your loved ones’ future.
FAQs about the 8 Things Not To Put In Your Will
1. What is a last will and testament?
A last will and testament, commonly referred to as a will, is a legal document that outlines how you want your assets to be distributed and other important instructions after your passing.
2. Why is it essential to have a will?
Having a will ensures that your final wishes are carried out according to your desires. It provides clarity and prevents potential disputes among family members regarding the distribution of your estate.
3. Can I include funeral arrangements in my will?
It is generally not recommended to include funeral arrangements in your will, as the will is often read after the funeral has taken place. It is best to communicate your funeral wishes to your loved ones separately.
4. What should I include in my will?
You should include basic personal information, appoint an executor to carry out your wishes, designate a guardian for minor children or pets, list your assets and named beneficiaries, and provide clear instructions for asset distribution.
5. Can I leave assets in a trust outside of my will?
Yes, you can place assets in a trust, which operates independently of your will. This allows for smoother asset distribution and may help avoid probate.
6. Should I include property held in joint tenancy in my will?
Property held in joint tenancy passes directly to the surviving joint tenant and does not need to be included in your will.
7. Can I leave gifts with conditions in my will?
Including gifts with conditions in your will can lead to complications and legal issues. It is best to make unconditional bequests to avoid potential conflicts.
8. Can I leave gifts to pets in my will?
While you cannot leave assets directly to pets, you can appoint a caregiver and set up a pet trust to ensure their care and well-being after your passing.
9. What is a living will?
A living will, also known as an Advance Healthcare Directive, allows you to express your medical care preferences if you become incapacitated and cannot communicate them yourself.
10. Should I consult an attorney for help with my will?
It is highly recommended to consult with an experienced estate planning attorney when creating or updating your will to ensure it complies with all legal requirements and accurately reflects your wishes.
