6 Things You Should NOT Include In Your Will

A fountain pen sits on top of a brown envelope with the words “My Will” typed on them.

6 Things You Should NOT Include In Your Will

When people think about planning for their death and leaving their assets to loved ones, they most often think of a Last Will and Testament (Will). This document is the most common component, and also the most basic, of any estate plan. While a Will is certainly an important document, it is not always the right choice to convey assets to heirs after your death. In fact, some assets should not be included in your Will. Including these assets may confuse your heirs, cause financial or other disruptions, and potentially even invalidate your Will. To ensure your final wishes are honored, you may want to review your options with an experienced Florida estate planning attorney. At Loughlin Law, P.A., we may be able to leverage our knowledge and experience to ensure a smooth and easy transfer of your assets to those you love after you are gone. Call (561) 677-8384 to schedule a free consultation.

Property That Cannot Be Distributed Through a Will

Many assets cannot be distributed through a Will. These assets are often governed by laws or rules dictating what happens after the owner’s death. If these assets are included in a Will, the regulations or regulations Will override any clause in the Will.

Jointly Held Property

Jointly held property automatically becomes owned by the remaining owners after one owner dies. This applies to real estate, motor vehicles, bank accounts, or any other asset that has named owners. People commonly think of a husband and wife who own a home together when thinking of jointly held assets, but people do not need to be married or related to jointly own property. Joint owners can be a parent and child, two friends, business partners, or other combination of people. As a result of some joint ownerships, it can even be two people who don’t know each other and have inherited a part of the asset from their loved one.

Property in a Trust

Trusts are set up expressly to distribute the assets within the trust to beneficiaries after the trust grantor’s death. They are also designed to bypass probate. The terms of the trust dictate what happens to the assets in the trust. If an individual wishes to change the terms of the trust (such as adding or removing a beneficiary), they can do so by amending the trust documents. Naming this change in their Will will not be effective in making such a change, however.

Specific Financial Accounts

Life insurance and retirement plans have designated beneficiaries. Bank accounts often have the option of being a pay-on-death account, when the account owner names another individual to receive whatever funds are left in the account upon their death. Some investment accounts can also be transfer on death accounts, and similar to a pay-on-death account, are transferred to an individual the account owner names after the owner’s death. Like jointly owned property, these named beneficiaries override any clause in your Will. If an individual has named a beneficiary on life insurance, a retirement plan, bank, or investment account and decides they would like to change that beneficiary, they would need to contact the institution holding the policy or account to make such changes.

Digital Assets

Digital assets range from family photos and videos to digital versions of movies or television shows, music files, and cryptocurrency. Email and social media accounts, domain names, and subscription services like Netflix or Spotify are also considered digital assets. While cryptocurrency may have some monetary value, other digital assets like family photos and videos often do not. Additionally, the deceased may not have the right to transfer digital assets such as subscription services, movies, shows, or music.

Florida passed a law in 2016, the Florida Fiduciary Access to Digital Assets Act, which gives fiduciaries the legal authority to manage digital assets and accounts while also providing custodians of those assets and electronic communications the legal authority needed to interact with those fiduciaries while also honoring the privacy of the original user. Additionally, the American Bar Association recommends using a financial power of attorney to ensure that the decedent’s legal representatives can access these digital assets.

Provisions for Children With Special Needs

Parents, grandparents, and others often want to ensure their children, grandchildren, or other children they love are provided for after their death. Children with special needs, whether they are still minors or adults, may receive state or federal government assistance. When this is the case, an inheritance could disqualify or reduce the amount of the aid the child receives, which could be disastrous, particularly if the inheritance is not enough to live on long-term. In addition, the government could claim that inheritance as reimbursement for public-funded services the child received.

If an individual wishes to leave an inheritance for a special needs child, creating a Special Needs Trust may be the right option. The proceeds of this kind of trust are not counted as part of the beneficiary’s income and do not affect government benefits. Individuals may want to consult with an estate planning attorney to ensure they choose the optimal method of leaving an inheritance for a special needs individual.

Conditional Gifts

Sometimes, a parent or grandparent wants to leave their child or grandchild an inheritance while helping that child better their lives. They might be tempted to leave that inheritance with conditions such as completing a college education or recovering from a substance abuse problem. However, recipients cannot be required to take a particular action or meet specific criteria to receive the gift left in your Will. The conditions may invalidate the gift and the beneficiary won’t receive it, even if they can meet it. Additionally, enforcing the conditions can be difficult and cause legal disputes or other problems even when the conditions are met.

If an individual wishes to place conditions on the inheritance they are leaving a loved one, they may want to consider a trust. Trusts allow the grantor to place conditions on the beneficiary receiving their inheritance, such as reaching a particular age, getting a specific education, or attaining other accomplishments. Trusts cannot have conditions that violate state or federal law or public policy. Loughlin Law, P.A. has skilled estate planning attorneys who can assist you in creating a trust that meets both your and your beneficiary’s needs.

Funeral and Organ Donation Instructions

A Will may seem like the ideal document to spell out an individual’s final wishes regarding their funeral arrangements and organ donation instructions. However, organ donation often takes place within hours of the individual’s death. For example, PennState Health indicates a heart must be transplanted no more than four hours after donor death, and a liver no more than 24 hours. A Will may not be looked at for days or even a week or two after the individual’s death, which means any instructions provided for the funeral or organ donation may no longer matter, as both may have taken place already.

Individuals should consider creating a separate document with the details of their funeral arrangements and organ donation instructions. They can then provide this document or its location to loved ones so that they can review it immediately and have their wishes honored.

Provisions for Pets

Pet owners love their animals and typically want to ensure that their companions are cared for after the owner dies. However, they cannot leave money or property to their pets in their Will. In Florida, pets are considered personal property and can be given to a new owner via a Will. There is no guarantee that the new owner Will keep the pet or provide for it how the owner wants. Additionally, if the owner leaves money to provide for the pet, the beneficiary could give the pet away and use the money any way they wish.

If pet owners wish to leave provisions for their pets, a Florida pet trust created under FL §736.0408 may be a better option. A trust would ensure that the person who inherits the pet keeps it and also allow the owner to leave money that must only be used for caring for the pet. The trust can also provide additional details about caring for the pet, such as specifying particular brands of food or instructions regarding medication the animal takes.

Ask a Florida Estate Planning Attorney About Your Options

While a Will is an integral part of any estate plan, it is not the only piece of the plan, nor is it always the right way to leave an asset to someone. Each estate is unique, and thus, each estate plan is unique. When planning your estate, it is important to understand what you can and cannot leave to others in your Will. If you have additional questions regarding your estate planning options, including what to put in the Will and what to leave out, Loughlin Law, P.A. may be able to assist you. Call (561) 677-8384 for a consultation to meet with one of our experienced Florida estate planning attorneys and learn more about your options.

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