When you’re creating a Will, you likely know you need to include specific instructions for how you want your assets distributed and who you wish to serve as your executor. However, it’s just as important to understand what not to include in your Will.
Estate planning can be complicated, and an improperly drafted Will could result in hassles for your loved ones and your wishes not being carried out as intended. As you’re drafting yours, here are seven things to avoid adding if you want a legally valid document.
What to avoid putting in your Will
1. Certain types of assets
Different types of assets have different rules that govern how they’re distributed after you die. These rules are independent of your Will. For example, joint tenancy property will legally go to the surviving tenant, while certain assets like life insurance, retirement plans, and stocks and bonds will go to your designated “pay-on-death” beneficiary.
2. Funeral instructions
Many people mistakenly believe their desired funeral plans should be stated in their Will. However, the execution and settling of the estate typically doesn’t happen until after the funeral. If you include your funeral arrangements, they likely won’t even be seen until after your services.
To ensure your funeral wishes are executed, talk with your loved ones about the type of service and burial you’d prefer and let them know you’ve made certain indications of those wishes in your Will but may also prepare additional details in a separate document. If you do create a separate document outlining your wishes, make sure to give it to the intended executor of your Will during your lifetime to make sure your funeral happens as you envisioned.
3. Conditions for gifts
Often people will put certain conditions on gifts that are stated in their Will. However, not all of these conditions have the ability to be executed legally. For example, you may wish to leave a grandchild a sum of money for when they graduate college or leave someone in your family a certain property if they use it for a professional endeavor. These conditions can be loosely enforced by the executor of your Will, but they can be challenged if someone disagrees.
It’s important to note that any condition that includes marriage, divorce, or the change of religion (e.g., “This person can only inherit my house if they remain single and unmarried.”) cannot be included in a Will, as it cannot be enforced in a court.
4. Care instructions for a person with special needs
If you would like to arrange care for a dependent with special needs or a disability, your Will is not the place to do it. Instead, it’s best to set up a separate document called a special needs trust that will specifically address the management of care for someone with special needs.
5. Pet inheritance
As animals do not have the legal capacity to own property, you cannot leave any gifts directly to a beloved pet. What you can do is use your Will to leave your pet to someone who you know will provide for your pet’s care. You may also set up an irrevocable Pet Trust, either as an additional provision of your Will or as a separate trust document, which will allow you to pass on any property, money, or assets to your designated caretaker to help them provide for your pet according to your wishes.
6. Joint assets and Retirement Accounts
Much like joint property, any funds or money that is in a joint account will automatically go to the other surviving account holder. It is unable to be inherited by anyone else until the other account holder passes away. In addition, if you want to allow your beneficiaries to defer additional taxes and penalties associated with the probate of your retirement assets, it may be important for you to discuss the pros and cons of naming a beneficiary (such as a child) as a pay-on-death beneficiary after your spouse or omitting any secondary beneficiary so that the retirement will pass through your Will and be managed by a trustee named therein for a child’s benefit.
7. Leased or rented assets
You cannot gift anything that is not entirely legally yours in your will. This includes a leased car or a rented home or apartment. These assets will be returned to their legal owner once you have passed.
Get help properly drafting your Will
If you are currently in the process of creating a Will, contact the Law Office of Patricia E Tichenor. We have over 20 years of experience handling estate planning for Virginia residents and can guide you and your family through the process. Contact us today to schedule a free consultation about your estate planning needs.