When it comes to drafting a will, knowing what you should never put in your will is just as critical as knowing what to include. Never put funeral instructions in your will as it might not be read until the funeral is over. This can cause unnecessary confusion and delays during an emotionally charged time.
Let’s take a look at the things you shouldn’t mention in your will and the reason why you should leave them out of it.
Key Takeaways
- Avoid placing funeral instructions in your will.
- Exclude assets with designated beneficiaries or joint tenants.
- Keep sensitive information private and out of the will.
Table of contents
Financial Management
The topic to start our list of what you should never put in your will are financial management. t’s crucial to address joint accounts, property already in a trust, business interests in an active business, life insurance, and significant assets left to one’s heirs to ensure a smooth and legally sound process.
Joint Accounts
Joint accounts should not be included in a will. When one account holder dies, ownership typically transfers automatically to the surviving holder due to rights of survivorship. Including them in a will can cause confusion and conflict among heirs, as these assets are not considered part of the probate estate.
Property in a Trust
If property is held in a trust, do not include it in a will. Trusts are designed to bypass the probate process, so adding these assets in a will is redundant. Trustees manage these properties according to the trust agreement, ensuring continuity and avoiding legal complications.
Business Interests for an Active Business
Business interests in an active business should be handled through specific succession planning rather than a will. Including these in a will may not address the operational needs and can create uncertainty. A detailed business succession plan ensures the business continues to operate smoothly according to predefined terms.
Life Insurance
Life insurance benefits should not be listed in a will. These benefits are paid directly to the named beneficiaries and are not part of the probate estate. Including them in a will can lead to delayed payouts and legal challenges, contradicting the policy’s purpose of providing immediate financial support.
Heirs and Significant Assets
Significant assets left to heirs should be addressed with clear, well-structured estate planning techniques outside of a will. Methods such as direct beneficiary designations, joint ownership, or creating a trust can help manage these assets more efficiently, avoiding potential probate issues and ensuring timely and accurate distribution to heirs.
Confidential Matters
Certain highly sensitive information should never be included in your will due to the potential for compromising privacy and security.
Personal and Private Wishes
Personal and private wishes, such as circumstances surrounding personal relationships or preferences about less formal affairs, should be communicated verbally or documented privately. Including these in a will can lead to potential misunderstandings or disputes among beneficiaries.
Consider writing a separate letter to maintain privacy and to ensure that such personal wishes are respected without creating legal complications. The will is often a public document and thus not suitable for private or sensitive personal matters.
Secret or Secure Information
Certain types of information, like passwords, PINs, or security codes, should never be included in a will. Such details can be easily compromised when the will becomes a public record during probate.
Instead, use secure methods to pass on this information, such as a secure digital vault or trusted individuals. It is also wise to update these details regularly, ensuring they are accessible only to trusted individuals when necessary.
Legal Considerations
When drafting a will, it is crucial to ensure clarity and relevance to prevent legal disputes and to make sure that the wishes of the testator are honored efficiently.
Ambiguity and Inconsistency
Ambiguity in a will can lead to misinterpretations and disputes among beneficiaries. Clear language should be used, specifying exactly who receives what. Inconsistent terms can invalidate portions of the will. Cross-referencing with other legal documents can help prevent contradictions.
Avoiding vague terms and double-checking for conflicting statements is essential. Legal professionals can review and suggest improvements to eliminate unclear phrasing.
Obsolete Provisions
Obsolete provisions can create issues during the execution of a will. Laws and personal circumstances change over time; items or terms specified may no longer be applicable.
Regular updates at significant life events—such as marriage, divorce, or the birth of children—ensure the will remains current. Outdated references could lead to confusion and unnecessary legal hurdles.
Assets That Go Through Probate
Some assets automatically transfer outside the will, such as joint accounts or life insurance policies with designated beneficiaries. Including these assets in a will can lead to unnecessary delays and complications.
Probate assets are those solely owned by the testator and include personal property, bank accounts, and real estate. Understanding which assets need to be addressed can simplify the legal process.
Unenforceable Conditions
Conditions that are illegal or against public policy cannot be enforced in a will. These might include stipulations that encourage illegal activity or restrict fundamental rights. Conditions like requiring marriage to a specific person or imposing religious practices are examples.
Legal counsel should be sought to ensure all conditions included in the will are legally enforceable. Drafting enforceable conditions avoids potential invalidation or legal challenges to the will.
Personal Directives
In this list of what you should never put in your will, next instructions might surprise you. Should not be included in a will funeral and burial instructions, as well as care instructions for a person with special needs. Why? because they can delay the process or cause confusion
Funeral and Burial Instructions
Funeral and burial wishes are often time-sensitive and can conflict with the time it takes to execute a will. Instead, individuals should communicate these wishes directly to family members or include them in a separate, more easily accessible document. Funeral arrangements can be detailed in a letter or through pre-planning with a funeral home.
Items to note:
- Preferred funeral home
- Burial or cremation
- Specific rituals or services
Care for a Person with Special Needs
Directives regarding the care of a person with special needs should not be in a will. This is because immediate care needs might not align with the probate process’s timeline. Instead, a special needs trust or a care plan should be established separately.
Crucial details:
- Establish a special needs trust to ensure financial support
- Appoint a caregiver through a legal document
- Detail medical, educational, and social requirements
Ensuring these instructions are handled outside of a will helps manage care more efficiently and can prevent legal complications.
Personal Preferences
Other things you should never put when creating a will are specific personal desires that may not be legally enforceable or could create complications.
Gifts or Funds to Pets
Pets cannot directly inherit money. While one might want to provide for the welfare of their pets, it is crucial to do so through proper legal avenues, such as establishing a pet trust. These arrangements ensure that designated funds are managed by a trustee for the pet’s care, rather than attempting to allocate money directly in the will, which can lead to legal issues.
Conditions on Gifts
Setting conditions on gifts, like requiring a beneficiary to do something to receive their inheritance, can invite legal challenges. Courts may find such conditions unenforceable, especially if they are deemed unreasonable or too restrictive. It’s better to discuss these wishes with the beneficiaries directly or choose alternative methods that can achieve the intended goals without complex stipulations in the will.
Tax Strategies
When drafting a will, certain tax strategies should be approached with caution to avoid unintended legal and financial consequences. This includes provisions related to tax avoidance.
Tax Avoidance Provisions
Including specific tax avoidance provisions in a will can lead to challenges. Authorities may scrutinize such clauses, potentially leading to disputes and delays in executing the will.
It’s advisable to steer clear of explicit instructions that aim to evade taxes, as they may be deemed illegal. Consulting with a tax professional to understand legal tax-efficient strategies is essential, without explicitly noting them in the will itself.
Summary
When planning a will, there are several critical points to consider to ensure legal compliance and clarity. Having certain instructions of what you should never put in a will can lead you to a will without legal constraints.
Consulting a legal professional ensures the will adheres to state laws and avoids common pitfalls.
Financial matters need careful consideration, and certain assets shouldn’t be mentioned in your will. Assets held in joint tenancy or that have designated beneficiaries should not be included, as they pass directly to the co-owner or beneficiary. Including them in your will can lead to potential legal conflicts and misinterpretations.
Confidential matters or private wishes should not be detailed in a will. Personal sentiments and informal notes should be communicated in a different manner, as wills become public record once submitted for probate. Keeping sensitive information out of your will ensures it remains private and doesn’t cause undue stress or harm.
Consulting a legal professional ensures the will adheres to state laws and avoids common pitfalls.
Frequently Asked Questions
Properties that are already designated to a beneficiary through other means, like joint tenancy or payable-on-death accounts, should not be included in a will. Additionally, assets held in living trusts are not appropriate for inclusion.
Naming individuals who may face legal or financial challenges could complicate the probate process. This includes minors, without proper trust arrangements, or individuals with special needs who rely on government assistance.
Errors like failing to update the will after major life changes, such as marriage or divorce, are common. Additionally, not clearly identifying beneficiaries or naming alternate beneficiaries can cause confusion and disputes.
While some conditions can be placed on inheritances, they must be reasonable and enforceable. Conditions that are vague, overly restrictive, or contrary to law may be invalidated by a court. Specific terms should be clearly articulated.