When creating a will, it’s important to remember that not everything belongs in this document. Some items can cause potential legal issues and disputes among your loved ones if included in the will. Other items may not be appropriate for the document. These items should not be put in the will in order to ensure that your will accurately reflects your wishes and avoids potential legal issues.
As a lawyer specializing in estate laws, I frequently come across wills that have such issues. In this post, I want to share 12 things you should not put in your will.
First of all, what is a will?
A will is a legal document that functions as an instruction to the court on how an individual’s assets and property should be distributed after their death. A will also names an executor, who is responsible for carrying out the instructions outlined in the will.
A will is not automatically valid. It has to be submitted to the court and a judge has to determine whether the document meets certain criteria, such as being signed and witnessed properly, and whether the testator was of sound mind when the will was created. This process can take time, and the final decision may not always follow the exact wishes of the testator.
A will that is in accordance with state laws and does not include any superfluous clauses will move much more quickly through the court system and will not be invalidated.
Here are things that should not be put in your will.
1. Funeral Instructions and Organ Donation
While it’s understandable that you want to plan your funeral, your will is not the right place to include detailed instructions. Funerals usually take place shortly after a person’s death, so it’s important to make your wishes known to your loved ones ahead of time. Instead, consider creating a separate document with your funeral wishes and let your loved ones know where to find it. New York state has a form to appoint an agent to control disposition of remains where you can also include funeral instructions.
2. Retirement Accounts
Retirement accounts, such as IRAs, 401(k)s, and 403(b)s, should not be mentioned in a will. This is because these accounts have designated beneficiaries, which means that the funds in the account will pass directly to the beneficiary after the account owner’s death. The beneficiary designation takes priority over any instructions in a will. If you want to change the beneficiary on your retirement account, you must do so through the account’s custodian or plan administrator, rather than in your will. This ensures that the account is distributed according to your wishes and in a tax-efficient manner. It’s important to review your beneficiary designations regularly and make changes as needed, particularly after major life events such as marriage, divorce, or the birth of a child.
3. Life Insurance and Annuities
For the same reason, you shouldn’t mention insurance policies and annuities in your will. These types of assets also have designated beneficiaries, and the beneficiary designation takes priority over any instructions in a will. It’s important to keep your beneficiary designations up to date, as the beneficiaries will receive the proceeds from these accounts regardless of what your will says. It’s also worth noting that any property that passes through the probate process, such as assets that do not have designated beneficiaries, is subject to claims by the deceased person’s creditors. This is another reason why it’s important to ensure that your will accurately reflects your wishes and that your assets are distributed in a way that minimizes tax liability and other costs.
4. Joint Property
If you own property jointly with someone else, such as a house or a bank account, you cannot use your will to dictate what happens to that property after you die. Instead, the property will go to the joint owner or owners. This is because joint property has a right of survivorship, which means that when one owner dies, the property automatically passes to the surviving owner or owners. Joint property is different from tenancy in common, which is a form of ownership where each owner has a distinct share of the property. If one owner dies, their share of the property will pass to their heirs according to their will or through the probate process, unless there was some other planning in place, such as a joint tenancy agreement or a living trust. If you’re unsure about the ownership structure of your property, it’s always a good idea to consult with an attorney.
5. Personal Property
While you can leave specific items of personal property to specific people in your will, it’s not recommended to include a long list of items and recipients. This is because a will can become a public document after your death, which means that anyone can see the details of your property and the individuals you named. Additionally, creating a long list of personal property in your will can create confusion and disputes among your loved ones. Instead, consider using a personal property memorandum to accompany your will. This is a separate document that lists the items of personal property you want to leave to specific individuals, without including the details in your will. The personal property memorandum can be updated more easily than a will, and it doesn’t require the formalities of creating a will. It’s important to note that the personal property memorandum must be specifically referenced in your will, and the memorandum should be kept with your will in a safe place.
6. Business Instructions
If you own a business, you should carefully consider your company’s future in your estate planning. While it may be tempting to include detailed instructions for how the business should be run after you pass away, using your will in this way can actually create more problems than it solves. Your will is primarily intended to distribute your assets to your beneficiaries, not to dictate the day-to-day operations of your business. Instead, it’s important to create a separate plan for the future of your business, which may involve creating a buy-sell agreement, appointing a successor, or creating a trust. These types of documents can help ensure that your business continues to operate smoothly after you’re gone, and can provide peace of mind for you and your loved ones.
7. Properties located overseas
Including overseas properties in a US will can often result in delays and complications. In many cases, a US will is not immediately recognized or enforceable in the country where the property is located. This means that the will may need to be first validated through a US court system, which can take a significant amount of time and may result in additional expenses. As a result, it’s often a better option to create a separate will or estate plan specifically for any overseas properties, taking into account the laws and regulations of the relevant country. This may involve working with an attorney in the country to ensure that the transfer of the property is completed in a timely and efficient manner.
8. Digital Assets
It’s critical to consider what will happen to your online accounts and other digital assets after you die in today’s digital age. However, your will is not the ideal place to make arrangements for these assets. Instead, it’s generally better to create a separate document or use an online service to store your digital assets. This can include information such as passwords, account information, and other important data that your loved ones may need to access in order to manage your digital accounts or retrieve valuable information. By creating a separate document or using an online service to store your digital assets, you can ensure that your loved ones have access to the information they need without putting sensitive information at risk or requiring the will to go through probate.
9. Assets for Beneficiaries With Special Needs
If you have a special needs child or other loved one, you must carefully consider their financial future when creating your estate plan. Leaving assets directly to a special needs individual can actually do more harm than good, as it may disqualify them from receiving important government benefits or support programs. Instead, consider creating a special needs trust, which can be used to provide financial support for the individual without affecting their eligibility for benefits. A special needs trust is designed to hold and manage assets on behalf of a beneficiary with special needs, and is typically overseen by a trustee who can make decisions about how the assets are used. By setting up a special needs trust and carefully considering how to structure your assets for the benefit of your loved one, you can help ensure that they receive the support they need both now and in the future. It’s important to work with an experienced attorney who can help you navigate the complexities of setting up a special needs trust and ensure that your loved one’s financial future is secure.
10. Guardianship for Minors
Nominating a guardian in your will for your minor children is not always the most effective approach. This is because a will does not take effect until after the probate process is complete, which can take several months or even longer. In the meantime, your children may need immediate protection and care in the event of your passing.
Consider naming a standby or temporary guardian, who can be available immediately to provide care and protection for your children. It’s important to follow your state’s legal requirements for creating these documents, as well as to carefully evaluate the individuals you nominate as guardians to ensure they are capable of providing the care and support your children require.
Additionally, the appointment of a guardian is primarily designed to provide for the care and protection of your children, not to dictate how they should be raised. Your will should not be used as a way to give detailed instructions on how the guardian should raise your children. You may want to create a separate document with instructions on important factors such as education, religion, and other aspects of your children’s upbringing. This document can be used to provide guidance and support to the guardian, and can help ensure that your wishes are respected in the event of your passing.
For additional information about naming guardians, please read our previous article HERE.
11. Conditional Gifts
Keep in mind that any gifts you make in your will should be unconditional. This means that you cannot put conditions on your gifts, such as requiring the recipient to take a certain action or meet certain criteria in order to receive the gift. If you do include conditions, the gift may be invalid and your beneficiaries may not receive the assets you intended to leave them. Additionally, even if the conditions are met, enforcing them can be difficult and may result in legal disputes or other complications. As a result, it’s better to keep your gifts unconditional and leave any specific instructions or conditions outside of the will.
12. Personal Messages or Disinheritance
If you want to include personal messages or disinherit someone in your will, it’s important to understand the potential legal consequences. Personal messages may not be legally enforceable and can create confusion, hurt feelings, or even disputes among family members. Additionally, if you disinherit someone without a valid legal reason, it may be challenged in court and result in a lengthy and costly legal battle. Furthermore, if the will is found to be ambiguous, incomplete, or legally invalid, it may lead to further legal disputes and delay the distribution of your assets. To ensure that your will is legally sound and your assets are distributed as per your wishes, create a will that focuses on the distribution of your assets in a clear, concise, and legally valid manner, without personal messages or disinheritance clauses. You can also use a trust instead for these purposes, as a trust can provide greater flexibility, privacy, and control over the distribution of your assets while avoiding potential legal challenges.
In conclusion, your will is an important document that should reflect your wishes for the distribution of your property after your passing. However, it’s important to remember that not everything should go into your will. By avoiding these 12 items, you can create a clearer and more effective will that accurately reflects your wishes.
If you have any questions or concerns about your estate plan, it is always a good idea to consult with an estate planning attorney.