What Not to Include When Writing a Will
December 23, 2019
A will has a very specific purpose to serve as a legally binding record of how your property should be divided after your death. Your will should list your wishes for the disbursement of your personal property to select heirs or beneficiaries. It should also include who will serve as the executor of the estate.
If you have minor children, your will should address who you wish to entrust with their care, as well as what assets you wish to set aside for their benefit. These allocations should account for the costs associated with their interim care, as well as any inheritance they will be due when they come of age. While this breakdown simplifies a complex arrangement, it covers the basics.
It is worth noting that there are certain issues that should not be included in a will. Below is a list of common misconceptions about certain assets and issues that have no place being included in your will.
Property Superseded by Other Documents
Beneficiary assignments for many assets are outlined in specific documentation pertaining to those arrangements. Probate rules do not apply here. Some examples of such property include:
- Joint tenancy property: Also known as property with rights of survivorship, this property automatically transfers to the surviving owner upon the co-owner’s death.
- Property in a living trust: The assets and allocations set forth in living trust documents are unaffected by any inconsistencies present in a will.
- Life insurance benefits: Documents establishing life insurance will list the assigned beneficiary.
- Certain investments and assets: Individual documents setting up retirement, pension, IRA, or 401(k) accounts will identify the beneficiary. The same is true for stocks and bond holdings that name an intended recipient.
Issues Out of Place in a Will
Funeral wishes: The will and similar affairs are usually addressed after the funeral takes place. For this reason, it is better to talk to family or create a specific document for this purpose.
Tax avoidance tactics: A will is not the platform to attempt to address tax planning; a trust is better suited to establish tax protections for your assets.
Attempts to avoid probate: A will can help clarify the probate process, but probate can only be avoided by establishing a trust naming your beneficiary, rather than leaving the property to them in your will.
Special needs care: Care for a disabled person should be addressed in a special needs trust.
Gifts for pets: Pets cannot be listed as beneficiaries in a will. Better to use a trust to assign a human trustee with funds to be used to provide pet care. Some states allow for a trust to be established with the pet named as the beneficiary.
Conditions on gifts: While you may wish to leave your property to your loved ones under the conditions that they be used for certain purposes, it is unlikely that anyone will follow up once the gift is granted.
Brooklyn Elder Law Lawyers at Korsinsky & Klein, LLP Provide Estate Planning Services
Establishing a will is an important step to ensure your assets go to the people you intended. Proper estate planning can guarantee that your wishes are clear and carried out. The Brooklyn elder law lawyers at Korsinsky & Klein, LLP can help you detail those intentions in a properly prepared will. Contact us online or call us at 212-495-8133 to learn more. Located in Brooklyn, New York, and Lakewood, New Jersey, we provide estate planning for clients in Manhattan, Long Island, and Westchester, New York.