What Should Not Be Included in Will?

POSTED ON: August 6, 2021

In general, a last will and testament is an easy and straightforward way to state who gets what when you die and name a guardian for your minor children.

What Should Not Be Included in Will?

A last will and testament is the basic document of an estate plan, which is how you direct assets according to your wishes after you have died. However, there are certain things that do not belong in a will, and it’s important to know what they are. Mistakes can lead to expensive and worrisome complications, says the article “Things you should never put in your will” from msn.com.

Your will can get very specific about who receives what in the way of your personal possessions. For example, you can give your car to a family member of your choice. What you can’t do is tell the family member how they can use the car, or if she should never sell the car. Enforcing conditional wishes through a will isn’t legal, nor is it practical.

Under Louisiana law, you cannot leave an asset to one person (say a spouse), with a directive that it be left to a second person (say a child) after the first person (the spouse) has died.  The Louisiana Civil Code calls this a “prohibited substitution” and it is against the public policy of the state.  So anyting that is a “prohibited substitution” should not be included.

If you want to control aspects of an inheritance, the best way to this is through a trust, which allows you to set terms that are enforceable, even after you have died. A trust is a legal entity with a trustee and the law to enforce its terms. You can set goals or milestones for heirs best with a trust.

Leaving assets out of your will actually benefits family members in many regards. First, they’ll receive their inheritance faster. Upon death, your will must be reviewed and validated in a court of law in a process known as probate. Depending on your jurisdiction and the complexity of your estate, this can take months and, in some cases, years. Papers have to be filed, judges have to review your will and determinations must be made. Wills can also be contested in court, further tying up assets and slowing the process of distribution.

Putting property in a trust (which won’t be included in your will) or having accounts that are Payable On Death (POD) can speed up the process for heirs, but as I have stated in this post on Payable on Death Accounts, they can be a litigation nightmare waiting to happen.  They should be used judiciously.

Don’t put anything in a will that you don’t own outright. If you are a co-owner with someone, upon your death, the other owner will become the owner, with no need for court involvement.  So that should not be included.

Trusts are a key tool in estate planning, used to avoid probate and increase control of assets. Once property is titled into the trust, it becomes subject to the rules and directions of the trust, which are explained in detail in the trust documents. Nothing placed in a trust should be included in a will to avoid any confusion and delays.

Certain accounts and assets are payable or transferable on death.  They are distributed directly to heirs, so putting them in a will is not necessary. These are accounts with beneficiary designations, typically brokerage or investment accounts, retirement accounts, pension plans and life insurance policies.

Business interests can be given through a will, but you may not want to do this. You should already have a business succession plan established if you are a partner or co-owner of a business.  Your business partners may be left with a big headache, instead of focusing on transitioning the business to the next generation of owners. Your estate planning attorney will be able to help create a succession plan that will align with your estate plan. The two need to work together.

Once deemed valid by the probate court, your last will and testament becomes a public document.  Anyone who wants to read it, can do so. Your will should not include any account numbers, account values, login information, passwords, or any information you would not want to be shared in public.

BOOK A CALL with Ted Vicknair today to disuss anything about what to include and not include in your will.  The call is free.

Reference: msn.com (July 11, 2021) “Things you should never put in your will”

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