Creating a will is a pivotal step in managing your estate, but it’s crucial to know that not everything can or should be included. A well-crafted will directs the distribution of your assets and can safeguard your loved ones’ futures after you’re gone. However, certain items included can complicate or invalidate your final wishes. This guide dives into seven key types of assets and directives that you should never put in your will, ensuring that your estate is handled as efficiently and effectively as possible.
1. Property with Designated Beneficiaries
Many people mistakenly include items like life insurance proceeds, retirement accounts, and “pay-on-death” (POD) or “transfer-on-death” (TOD) accounts in their wills. These accounts already have beneficiaries designated directly through the financial institutions and are meant to bypass the probate process, passing straight to the named individuals upon your death.
Adding these items to your will can create confusion and potential legal conflicts, as the beneficiary designations on the accounts themselves override what’s specified in the will. To manage these assets effectively, ensure that all beneficiary information is current and correctly listed with the respective institutions.
Furthermore, it’s a good idea to review these designations after major life events such as a marriage, divorce, or the birth of a child. Changes in your personal circumstances might prompt updates to ensure your assets go exactly where you intend.
Remember, the key is clear communication with your financial institutions and beneficiaries to avoid any discrepancies between your will and the designation forms provided by your bank or insurance company.
2. Jointly Owned Property
Property owned in joint tenancy, tenancy by the entirety, or community property with a right of survivorship should not be included in your will. These types of ownership mean that the property automatically passes to the surviving owner upon your death.
Including such property in your will is unnecessary and can be legally irrelevant. If you wish to change who should inherit this property, you must alter the form of ownership or renegotiate the terms with the joint owner while you are still alive.
Addressing changes in jointly owned property can be complex and might require legal assistance. It’s often beneficial to consult with a real estate attorney to understand your options and the implications of changing ownership.
3. Special Needs Trust Provisions
When planning for the care of a loved one with special needs, a will is not the appropriate place to handle such provisions. Instead, setting up a special needs trust is the recommended approach.
This type of trust ensures that the beneficiary can receive financial support without jeopardizing their eligibility for government benefits such as Medicaid or Supplemental Security Income (SSI). A special needs trust provides more control over the funds and stipulates specific uses like education, healthcare, and living expenses.
Creating a special needs trust involves understanding complex legal requirements and should ideally be done with the assistance of an attorney who specializes in this area. This ensures that all legal criteria are met and that the trust functions as intended.
4. Funeral Instructions
While it might seem logical to include funeral instructions in your will, this is actually not advisable. Wills are often not read until days or even weeks after death, which is too late for such directives to be useful.
Instead, communicate your funeral wishes directly to your family members or prepare a separate document outlining your preferences that is easily accessible. This can ensure your wishes are followed immediately after your passing.
Documenting and communicating these wishes in advance avoids any confusion or family disputes that might arise from unclear instructions at a sensitive time.
5. Conditional Gifts Based on Personal Choices
Be wary of including conditional gifts in your will that require the recipient to marry, divorce, or change their religion. These types of conditions are generally viewed unfavorably by courts and can lead to legal challenges.
Such provisions can not only cause delays and disputes during the probate process but may also be deemed unenforceable, rendering them ineffective and possibly voiding the gift altogether.
If you have specific wishes regarding the circumstances under which your assets should be distributed, consider discussing these with a legal advisor to find more suitable and legally sound methods of conveying your intentions.
6. Pets as Direct Beneficiaries
While our furry friends are important members of our families, legally, pets cannot own property or inherit assets directly. Instead of leaving assets directly to a pet, you should appoint a caregiver in your will and possibly allocate funds for the pet’s care.
This approach ensures that your pet will be cared for in the manner you wish without legal complications. It’s also advisable to discuss these arrangements with the chosen caregiver to ensure they are willing and able to take on the responsibility.
By planning ahead and using the right legal tools, you can ensure your beloved pet continues to live a happy and healthy life even after you’re gone.
7. Illegal or Unrealistic Provisions
Attempting to include illegal or unrealistic provisions in your will can invalidate the document or specific parts of it. These might include impossible conditions, illegal activities, or unethical requests.
Courts will not enforce any part of a will that appears to be illegal or against public policy. It is important to ensure that your will complies with the laws of your state and reflects realistic and legal requests.
If you’re unsure about the legality of certain provisions, it is always best to consult with an estate planning attorney. They can provide clarity and guidance on what can and cannot be included in a will.
In conclusion, while drafting your will, it’s vital to focus on clarity, legality, and practicality. Avoiding these common pitfalls not only simplifies the probate process but also ensures that your true intentions are honored. Remember, consulting with a professional is the best way to guarantee that your will accurately reflects your wishes without any legal complications.
