By: Barry E. Haimo, Esq.
June 6, 2019
What You Shouldn’t or Can’t Add to Your Will
Writing a last will and testament can sometimes feel like wielding power from the beyond – saying who will get what, if and when they do what you say. Don’t let the power go to your head, however.
While documenting your wishes is a wise choice, ensuring your surviving family understands how you’d like your estate to be handled once you’ve gone, in this post we want to review some things that you can include in your will, but really shouldn’t — as well as some that you absolutely can’t.
Things You Can Include Cautiously
No rule says you can’t include your funeral wishes, but losing a loved one is highly emotional, and survivors tend to shift into autopilot, following typical protocol. Usually, family members don’t review the will until services are over.
If you have specific desires about what you want for your funeral, make sure to share your wishes in person or personally provide a completely separate document.
When thinking about our loved ones and what we want to leave to them, it is often difficult not to include information or instructions on what we want them to do with the gift. Unfortunately, this can end up backfiring and causing more problems.
For example, a condition like “this home is for my children’s family vacation time split equally each year” can complicate things quickly. Who will enforce that (because it won’t be the court) and for how long? Does the person who does receive compensation like an executor’s fee?
Instead, think unconditional love, unconditional gifts. Your loved ones will be glad you did.
A Request to Bypass Probate
All wills require presentation to the Probate Registry for verification and execution, a process which takes from a few months to years depending on the size and complexity of your estate.
One way to avoid the probate process is by consulting an estate planning attorney and setting up a living trust. Property within that trust automatically becomes something you are absolutely unable to will.
Importantly, having a will does not avoid the probate process.
Things You Are Absolutely Unable to Bequeath or Devise by Will
The property in a living trust is managed by the trustee, and automatically goes to the named beneficiaries. Once property has been delegated to someone, the only way a change can be made is via trust forms and documents – not through your will.
Proceeds Requiring a Beneficiary
Aside from trusts, a great many financial accounts and policies require a beneficiary, including life insurance policies, retirement plans, other stocks, bonds, and bank accounts. If you provided beneficiary name and contact information when you opened a given account or policy, those proceeds aren’t included in your will.
Although Florida is not a community property state, anything purchased in more than your name alone with the magic words is characterized as “joint tenants”. Consequently, upon your death, these items pass automatically by operation of law to the surviving co-owner – regardless of what a will says. If the asset is owned as tenants in common, it will go through probate and be subject to a will.
Animals do not legally have the capacity to own property, so your pet can’t inherit anything. An alternative for pet owners is to leave them – and any assets or funding you’d like to contribute for their care – to a trusted family member or friend. Florida does permit pet trusts, however.
If you have any specific questions about property and assets you’d like to include in your will, or the practical realities about whether a will will accomplish your goals, an experienced estate and business planning attorney can give you the advice you need.
Barry E. Haimo, Esq.
Strategic Planning With Purpose®
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