When creating a will, it is important to know what should and should not be included in the document. As a lawyer specializing in estate laws, I have seen many wills that have caused legal issues and disputes among loved ones.
By avoiding certain items in your will, you can ensure a smoother process and that your final wishes are carried out as intended.
In this article, we will discuss 12 things you should not put in your will to ensure that your final wishes are accurately reflected and avoid potential legal issues.
1. Personal Messages or Disinheritance
You must understand the potential legal consequences if you wish to include personal messages or disinherit someone in your will. Personal messages may not be legally enforceable. They can create confusion, hurt feelings, or disputes among family members. It may be challenged in court if you disinherit someone without a valid legal reason.
This can result in a lengthy and costly legal battle. If the will is ambiguous, incomplete, or legally invalid, it may lead to further legal disputes and delay the distribution of your assets.
2. Funeral Instructions and Organ Donation
When planning your funeral, it’s important to make sure to communicate your wishes to your loved ones ahead of time. Your will is not the right place to include detailed instructions, but you can create a document with your funeral wishes and let your loved ones know where to find it.
In New York State, there is a form to appoint an agent to control the disposition of remains, and you can also include funeral instructions. Additionally, if you wish to donate your organs, you can indicate this on your driver’s license or register as an organ donor with your state’s donor registry. It’s important to inform your loved ones of your decision to donate your organs to ensure your wishes are honored.
3. Personal Property
When creating a will, it’s important to consider how you want to distribute your personal property. While it may be tempting to list out specific items and their intended recipients, this can create confusion and disputes among your loved ones. Additionally, a will can become a public document after your death, meaning anyone can see the details of your property and the individuals you named.
To avoid these issues, consider using a personal property memorandum. This separate document lists the items of personal property you want to leave to specific individuals without including the details in your will. The memorandum can be updated more easily than a will and 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 kept in a safe place with your will.
4. Retirement Accounts
When it comes to estate planning, remember that retirement accounts, such as IRAs, 401(k)s, and 403(b)s, should not be included in your will. These accounts have designated beneficiaries, meaning 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 tax-efficiently.
It’s crucial to review your beneficiary designations regularly and make changes as needed, especially after significant life events such as marriage, divorce, or the birth of a child.
5. Life Insurance and Annuities
Regarding estate planning, it’s important to consider your life insurance policies and annuities. These assets have designated beneficiaries, and the beneficiary designation takes priority over any instructions in a will. Therefore, you must 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 worth noting that any property passing through the probate process, such as assets without designated beneficiaries, is subject to claims by the deceased person’s creditors. This highlights the importance of ensuring that your will accurately reflects your wishes and that your assets are distributed to minimize tax liability and other costs.
Consider speaking with a financial advisor to determine the best way to handle your life insurance policies and annuities in your estate plan. They can help you navigate the complexities of these assets and ensure that your wishes are carried out as intended.
6. Joint Property
If you own a property jointly with someone else, such as a house or a bank account, you cannot use your will to control what happens to that property after you die. Joint property has a right of survivorship, which means that when one owner dies, the property automatically passes to the surviving owner or owners.
It’s worth noting that joint property differs from tenancy in common, 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 other planning, such as a joint tenancy agreement or a living trust.
It’s important to consult with an attorney to understand your property’s ownership structure to ensure it is distributed according to your wishes. They can help you make informed decisions about estate planning and ensure your assets are protected during death.
7. Business Instructions
As a business owner, it’s important to consider your company’s future in your estate planning. However, using your will to dictate the day-to-day operations of your business can create more problems than it solves.
Your will is primarily intended to distribute your assets to your beneficiaries. Therefore, you should create a separate plan for the future of your business. This plan may involve creating a buy-sell agreement, appointing a successor, or creating a trust.
These documents can help ensure that your business continues to operate smoothly after you pass away. When creating these documents, it’s important to seek professional advice to ensure they align with your goals and objectives.
8. Properties Located Overseas
Including overseas properties in your US will can create complications and delays. In most 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 time and may result in additional expenses.
To avoid these complications, it is often recommended to create a separate will or estate plan specifically for any overseas properties. This will allow you to take into account the laws and regulations of the relevant country.
Working with an attorney in the country where the property is located can help ensure that the transfer is completed in a timely and efficient manner.
When creating a separate will or estate plan for overseas properties, it is important to consider factors such as local taxes and inheritance laws. You may also want to consider appointing a local executor or trustee who is familiar with the local laws and customs.
9. Digital Assets
In today’s digital age, it’s important to consider what will happen to your online accounts and digital assets after you pass away. While your will may seem like the obvious place to make arrangements for these assets, it’s generally not the best option.
You should create a separate document or use an online service to store your digital assets. This can include important information such as passwords, account details, and other data that your loved ones may need to access in order to manage your digital accounts or retrieve valuable information.
By doing so, you can ensure that your loved ones have easy access to the information they need without putting sensitive information at risk or requiring the will to go through probate.
Storing your digital assets separately can also help prevent potential disputes or legal issues that may arise from their distribution. It’s important to keep this information up-to-date and inform your loved ones of its location and how to access it in case of an emergency.
10. Assets for Beneficiaries With Special Needs
When planning your estate, it’s important to consider the financial future of any loved ones with special needs.
Leaving assets directly to them can jeopardize their eligibility for government benefits and support programs. Instead, consider setting up a special needs trust, which can provide financial support without affecting their eligibility.
A special needs trust is designed to hold and manage assets on behalf of the beneficiary with special needs. The trustee is responsible for making decisions about how the assets are used. This can include paying for medical expenses, education, or other necessary expenses.
When creating a special needs trust, it’s important to work with an experienced attorney who can help navigate the complexities of the process. They can help you structure your assets in a way that best benefits your loved one, while also ensuring their eligibility for government benefits.
11. Guardianship for Minors
When it comes to nominating a guardian for your minor children, it’s important to consider the most effective approach.
While a will can be used to nominate a guardian, it may not be the best option if your children need immediate protection and care in the event of your passing. This is because a will does not take effect until after the probate process is complete, which can take several months or even longer.
Instead, consider naming a standby or temporary guardian who can be available immediately to provide care and protection for your children. It’s essential to follow your state’s legal requirements for creating these documents and carefully evaluate the individuals you nominate as guardians to ensure they are capable of providing the care and support your children require.
It’s important to note that 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. Instead, 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.
12. Conditional Gifts
When creating a will, it’s important to keep in mind that any gifts you make should be unconditional.
This means that you cannot place any 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. Even if the conditions are met, enforcing them can be difficult and may result in legal disputes or other complications.
Therefore, it’s better to keep your gifts unconditional and leave any specific instructions or conditions outside of the will. This will help ensure that your beneficiaries receive the assets you intended for them without any issues.
Creating a Legally Sound Will
Create a will that focuses on asset distribution to ensure that it is legally sound and that your assets are distributed according to your wishes. Make sure it is clear, concise, and legally valid. Avoid including personal messages or disinheritance clauses. You can also use a trust instead for these purposes. A trust can provide greater flexibility, privacy, and control over the distribution of your assets. It can also help you avoid potential legal challenges.
