A last will and testament is a legal document that communicates a person’s final wishes about what should happen to their assets after their death. You can think of a will as an instruction manual that tells your heirs and executors how to process your estate, but that doesn’t mean that a will is the appropriate legal document to handle everything that has to do with your death. Here’s a list of things you should never put in your will.
The Reason for Your Decisions
When a soap opera character dies, they usually leave a scathing letter to be read aloud during the reading of the will. You know how this goes - the dead patriarch leaves his billion dollar perfume empire to his long lost son, disinheriting his other children, ex-wife, and current wife. The will includes a paragraph explaining exactly why the patriarch is getting revenge on all of his scheming relatives. Oh, the drama!
But soap operas are not real life. The “reading of the will” is a dramatic construct that doesn’t actually happen, and there’s nothing to be gained by including a letter or rationale or rebuke with your last will and testament. It will only encourage strife and lay the groundwork for the dreaded will contest. If you really have something to say about the reason for your decisions, it’s best to send the person a letter or inform them while you’re still living.
Non-Estate Property
Property that doesn’t have to go through probate doesn’t get included in your will. What property is not considered part of your estate? Anything that would go directly to a beneficiary, like the proceeds of an insurance policy or a 401(k). Bank accounts and investment accounts can simply be assigned to a beneficiary, which means it won’t need to go through probate. You also can’t include property that is jointly owned, because your interest will generally pass directly to the co-owner upon your death.
Trust Property
Trust property also doesn’t go into your will. A trust is a separate legal entity that holds property for the benefit of one or more beneficiaries. If you’ve established a trust and funded it with assets, those assets cannot be passed through a will, because they are the legal property of the trust, and it will be distributed according to the trust’s rules.
Conditional Property
In a will, you can leave people-specific bequests. As long as the gift has no strings attached, this is legal and enforceable. For instance, you can give your 1969 Plymouth Barracuda to your daughter and leave a $10,000 bequest to your brother, and your executor will have to make sure your requests are honored. But if the gift hinges on the fulfillment of certain conditions, then the gift might not be enforceable. For example, if you want your daughter to inherit your classic car, but only if she gets her Ph.D., then the will is probably open to dispute. If your cash gift to your brother is contingent on him remaining sober for ten years, you’ve creed an unenforceable stipulation. If you want to give something away with strings attached, then you would be better off establishing a trust.
Funeral Arrangements
Funeral arrangements should not be included in your will because it’s highly unlikely that anyone will read your will until weeks or months after your death. By that time it will be too late. It’s a better idea to write a separate document including all of your wishes about the arrangements. Some people do this by letter, while others include it in their living will. Many funeral homes can also help you take care of this before you pass away.
Organ Donation Preferences
Relatedly, if you want to be an organ donor, or have specific requests about this process, don’t include it in the will. Instead, include your organ donor preferences in your living will and in a letter you leave for your loved ones. Since time is of the essence with organ and tissue donation, you should look up your state’s requirements to ensure that the appropriate parties are aware of your wishes.
Business Interests
Although it’s legal to give away some business interests through a will, it’s usually not a good idea. Since wills go through probate, and probate takes at least some amount of time, this can leave things at the business up in the air during a crucial time after you die. Succession is also liable to be complicated, since co-owners and your heirs may contest the will. There might be tax implications if your business is passed through the will, particularly if your state has an estate tax.
