Many people mistakenly include stipulations that have no business being while writing a will, a.k.a. a Last Will and Testament. Learn the top 5 things that don’t belong in a Will.
Preparing a Will, a.k.a. Last Will and Testament, is a great first step in planning for the future. A valid Will is the summary of a person’s wishes and the document that their loved ones and the court will defer to on how to distribute their wealth and other assets after passing.
This means that writing a Will needs a lot of careful considerations, including whom you want to be in charge of administering your wishes. However, keeping in mind that a Will goes through Probate and will become public record, there are some things you should NEVER include in your Will.
Read on to find out the 5 common mistakes that people make and how you can avoid them.
- Personal Preferences or Desires
To simplify the administration of your Will, you should not make very specific requests or engage in discussions about your feelings. As mentioned earlier, a Will goes through a public and court-supervised probate process and becomes public record. This also often occurs well after someone is laid to rest.
Elaborating on personal feelings about others in your Will can set the tone for the administration of your estate. This could put your executor in a tight spot, where he or she may feel some trepidation about being part of a situation where there appears to be hurt feelings or potential conflict from the outset.
Another example of when it is best not to state personal or specific feelings in your Will is wishing for a certain religious ceremony to be performed at your funeral or you want a celebration of life event. Due to the timing of when a Will usually goes through Probate, an executor will not necessarily be able to implement these wishes after the fact.
There are still ways you can communicate your wishes to your loved ones:
- Provide your family with a letter of instruction containing these details.
- If you want your burial to be done in a certain way, I highly recommend you pre-purchase a burial plot and prepay for specific arrangements.
- While you can create a fund for any event you would like, with a payable-on-death designation to someone you trust, it is best to prepay for funeral arrangements. The person you leave the money to doesn’t have to use it to pay for your funeral. This applies to life insurance policies as well.
- Organ Donation
If you wish to be an organ donor, you should not use your Will as a place to specify this wish. Remember, a Will is usually reviewed AFTER the decedent is laid to rest. By then, it will be too late to do anything about your organ donation wishes.
In most states, there are specific ways to document your desire to be an organ donor ensure that it is known and followed. In Texas, these include:
- Listing it on your driver’s license
- Signing up at the Texas Organ Donor Registry
- Including it in your Medical Power of Attorney
- Health Care or End-of-Life Decisions
In line with the timing of when your Will will be reviewed, your Last Will and Testament is definitely not the right place to document what you would like to happen if you have suffered a substantial and irreversible loss of mental capacity or have an incurable or irreversible condition.
Another document called a Living Will is much better suited to outline your preferences for future healthcare treatments. You should also have a separate healthcare proxy that designates an agent to be able to speak with your doctors and make healthcare decisions on your behalf should you temporarily become unable to do so.
- Be Careful About Leaving an Inheritance to a Person With Special Needs
While good intentions are behind wanting to provide for a person who has special needs upon your death, leaving them an outright bequest in your Will could have unintended and detrimental consequences, such as:
- This may disqualify them from critical health and other benefits they need to manage their day-to-day life.
- It can put them in a situation where they are forced to place your generous gift in a special needs trust – however, this will go to the government upon their death if not used up.
Consult us at the Law Office of Antoinette Bone about creating a
- Non-Probate Property
Another consideration of what not to include in your will is “non-probate” property. This can encompass many things, but some of the most common examples are:
- Property held in a trust— The main point of placing property in a trust is often to avoid probate. If you have property in a trust, it doesn’t need to be addressed in your will, as the trust controls what happens to that property upon your death.
- Property that already has beneficiary designations— For example, including things like your 401(k), IRA, or life insurance in your will can make things unnecessarily complicated or slow things down when it comes to your beneficiaries getting the funds. The best thing to do is to confirm your beneficiary designations are up to date and in line with whom you want to receive the funds.
- Property that is jointly owned with right of survivorship— This property will pass naturally to the other person upon your death. An exception is where the other person is no longer living or has given up their rights to the property in a divorce or otherwise.
These are just a few examples of the common things people mistakenly include in a Will. However, everybody’s situation is different and there may be more items pertaining to your situation that should not be in your Will.
Antoinette Bone is an Estate Planning attorney recognized by her peers as a Top Attorney. She can advise you on what should and shouldn’t be included in a Will, plus draft other important documents you may need to make your wishes known. If you are in the DFW Metroplex, call The Law Office of Antoinette Bone now to schedule your appointment.
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