Creating a Will is an important process. If you’re like most people, you don’t realize that there are certain things that you should not include in your Will. Some things you can’t include because it’s illegal; others, it’s simply not practical. Here’s a guide identifying what you can’t include when creating a Will.
1. Any property not titled in your individual name.
2. Funeral instructions
3. Federal estate tax planning
4. Certain conditions for receiving a gift
5. Any provisions that involve illegal action
When creating a Will, keep in mind that only property in your individual name is controlled by the Will. So, your Will would include your house, bank account, and investment account so long as it’s in your name alone.
If any of these assets are in joint names with a spouse or anyone else, as is very common, your Will has no control and the asset will go to the joint owner upon your death. This is also true of assets with a beneficiary designation and transfer on death/payment on death provisions. For example, your life insurance policy, naming your daughter as the beneficiary or stocks and bonds with a transfer on death designation, are not controlled by your Will. They follow the instructions of the contract.
When creating a Will, do not include funeral instructions. This is for the simple reason that funerals and memorial services are typically planned and executed before the Will is reviewed.
When creating a Will, use a Revocable Living Trust for federal estate tax planning. While technically, a Will can incorporate tax planning, it is cumbersome. If you’re going to do that level of estate planning, use a Trust as the center of your estate plan instead of a Will.
When creating a Will, ask your estate planning attorney about any gifts made with conditions. For example, you can’t make provisions that instruct that Sally receives $5,000 only if she marries your son, Sam. These conditions are illegal.
When creating a Will, don’t include provisions encouraging illegal behavior such as “My son, Sam, shall receive my 10 acres of farmland so long as he uses the land to grow poppies for opium.”
It is common to have questions when you are creating a Will. Consult with a qualified estate planning attorney who can guide you as to what to include or not include in your Will.