Published On
May 2, 2018

In its most basic form, a will is a document that states what you would like to happen when you die. There are some things that should be included in a will as well as a few things to avoid. As with any legal document, you’ll want to rely on the guidance and assistance of your attorney. It is important to know exactly what a will should include and any other aspects you might want to consider so your wishes are clearly stated.

What to Include in Your Will

An Executor

Your Executor is the person who will settle your estate, including distributing assets to heirs and paying off debts. Executors may receive compensation for their services so you’ll want to set something aside for the expenses associated with this responsibility, which can be quite time-consuming. You can choose a friend, family member or anyone else you desire who is or is not an heir themselves. You will want to make your decision based on someone you believe to be responsible with good time-management skills and who would be willing to take on the responsibility.

Guardians for Minor Children

This is perhaps the most important thing you can specify in your will. The person or people responsible for the care of your minor children should you die before they reach the age of maturity is more important than any asset you can transfer. Should you die without a will, you will be subject to the laws of the state which may not reflect your wishes.

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Your Assets and Belongings

You will want to indicate who should receive your assets, but recognize that only those assets that do not pass through trust or beneficiary designation should be included here. To put it another way, your probate assets (those settled through probate) should be included in your will. (The additional section on what not to include may help to clarify this point.) Make sure you are very specific. If you are granting your car to a niece, be sure to indicate the specific vehicle and specific niece. Avoid general statements like “equally among my children,” instead of using the specific names and amounts.

Provisions for Care of Pets

Many people include direction for the individuals or entities that will care for their pets. This can be a specific person, specified shelter if no one is willing/able to accept the pet, or even a rescue that specializes in your pet’s breed. It may make sense to set aside a monetary amount to offset the costs associated with the care of the pet. While arranging for the care of your pet, do not use phrases that gift items directly to the pet since animals do not have the ability to legally own property.

What to Avoid Including in Your Will

There are many things to avoid including in your will, but one recurring theme will be that any item that passes through a trust through or beneficiary designation should not be included in a will. You should instead make sure your wishes are reflected accurately in the trust or on the relevant beneficiary designation associated with the account.

If you have a trust, do you need a will?

Retirement Accounts

Retirement accounts should have a beneficiary selected which will allow them to pass outside of probate. If you also have a trust, be sure to speak with your attorney before making it the beneficiary of retirement accounts. Unless drafted with a “look through” or “see through” provision, it may be required to be distributed within five years instead of over the life of the person who receives the assets. Your desires for the account may be achievable by simply naming one or more natural people as the beneficiaries rather than a trust.

Life Insurance Contracts and Annuities

Life insurance contracts and annuities should also have a specified beneficiary. In the case of the latter, make sure you understand if the contract is designed to pay income or a lump sum to a survivor.

Accounts Held Jointly with Others

Accounts held jointly with others should not pass through a will. If the accounts are held with “rights of survivorship” with the other party on the account, they will become fully owned by that individual. Tenancy in Common accounts do not have a rights of survivorship feature but each tenant can select their own beneficiaries. Some ownership types such as Community Property or Tenancy by the Entirety are only available in certain states. You should address the treatment of these types of accounts with your attorney during the process of designing your estate plan.

Non-Legal Requests

Non-legal requests are specifications or conditions that are not legally enforceable or direct illegal activities. Examples might include endowing a scholarship at your alma mater that excludes members of a protected class or attempting to pass an item to an heir who can’t legally possess it such as a firearm for a minor.

Assets You Prefer to Pass Privately

Assets you prefer to pass privately should not pass with a will through probate. Like a divorce, bankruptcy or other court proceedings, the probate process is public. If you believe a specific asset (or even the overall size of your estate in general) may cause undue attention to your heirs, it may be best to arrange for the item or items to pass through a trust, avoiding the probate process.

Care for those with Special Needs

Care for those with Special Needs or those with a substance addiction may be better arranged with trusts that exist for this specific purpose. Should you wish to provide ongoing assistance for the care of an individual with special needs or a substance addiction, discuss this situation with your attorney to determine which documents may best achieve your objectives.

Management of Your Social Media Accounts

Management of your social media accounts should not be done through a will. Many users of social media platforms (including but not limited to public figures) wish for their accounts to be managed after their death by a third party. You should check the terms of service of the specific platforms you use to determine their policies for management of a deceased user’s account. Usernames, passwords or other confidential information should not be included in a will since the document becomes public once entered into probate.

What If I Make a Mistake?

There are a few mistakes you can make with your will. The first is not drafting one at all, in which case you will have died “intestate” and your assets will pass according to the laws in the state you reside. These may or may not match your wishes.

Another common error is not updating the will to account for changes. This can include changes in your assets (you sold a home and acquired a valuable antique) but also in circumstances. Perhaps one of your heirs is now deceased and another has reached the age of majority. It would make sense to update the document to account for these changes as they occur and to review it annually to make sure your wishes are still reflected.

Drafting your will is an important opportunity to make your own decisions about your legacy, yet mistakes are common for those at all levels of wealth. By thinking about what your wishes are, working with qualified professionals when needed and keeping your will current as changes occur, you increase the likelihood of passing your assets as intended. This can provide convenience to your heirs at a difficult time and peace of mind to you while alive.