5 Things That Should Stay Out of Your Will – A Guide

One of the most fundamental estate planning instruments is a will. While depending only on a will is rarely a good option for most individuals, almost every estate plan contains this important document in some form or another. A will is used to specify how your assets should be transferred to your surviving loved ones after your death. If you die without a will, state law determines the distribution of your assets, which may or may not be in accordance with your preferences.

However, not all of your possessions may (or should) be included in your will. As a result, it’s critical that you understand which assets you should include in your will and which assets you should include in other planning documents such as trusts. While you should always speak with an experienced planning expert like us when writing your will, here are five things you should never put in it.

1. Assets with Survivorship Rights

A will only protects assets that are wholly in your name. As a result, property held in joint tenancy, tenancy by the entirety, or community property with the right of survivorship will be disregarded by your will. When you die, these assets immediately pass to the remaining co-owner(s); therefore, leaving your part to someone else in your will has no effect. If you want someone other than your co-owner to inherit your share of the asset after you die, you must modify the asset’s title as part of your estate planning procedure.

2. Assets Held in a Trust

Recall that a will only covers assets you own in your name, so if you set up a trust, you will need to use your will to distribute the assets held in the trust. If you leave assets in a trust to someone other than your primary beneficiaries, they will not be able to access those assets without going through probate. This can lead to delays in access to the property and an increased chance that your family members will eventually need to go to court to get your wishes enforced.

3. Money for Your Pet

Although you may consider your pet to be a beloved member of the family, animals are considered personal property under the law. If you name your beloved pet as a beneficiary in your Will, all monies left to them will go to your residuary beneficiary. Setting up a Pet Trust is the most secure approach to ensure that your pet is adequately cared for after you die.

4. Conditional Gifts 

You may choose to make a gift or asset available to a beneficiary on a conditional basis. The recipient must meet a specified criterion to receive the present. For example, you may give your children the family cottage with the condition that they do not use it as a rental property.

This does not imply that you may impose any limitations on gifting. It is doubtful that the requirement will be implemented if it is unlawful or contrary to public policy. For example, courts are unlikely to enforce bequests that are contingent on the receiver marrying a certain person, getting divorced, or changing religion. Conditions that restrict receipt of the gift until the beneficiary reaches a specified age or educational level, on the other hand, are likely to be sustained.

A living trust, which allows you to select a trustee and define the terms under which the beneficiary gets the gift, is a preferable alternative for delivering conditional gifts.

5. Arranging Care for Disabled Family Members

While you may make provisions for another person’s care in your will, experts warn it’s not the ideal option. This is because caring for a handicapped relative is a considerably more involved job than a will, which primarily deals with property distribution. Certain trusts, such as special-needs trusts, are more comprehensive and may be the preferable option.

Conclusion

While a will is an important estate planning tool, it is not a complete or totally effective document. We recommend that you have an attorney draft a will, then draft a separate living trust to secure your wishes for the distribution of your estate. A trust gives you added control of your estate planning and is a more effective way of distributing your assets than a will alone.

Estate Planning Lawyers Colorado provides succession and estate planning services that meet your family’s estate legal needs. Let us assist you with your succession planning. Contact us today to get started!