What Should I NOT Put in My Will?

Estate Lawyer Phoenix, AZ

Creating a will can seem like a daunting experience. What exactly is a will and what types of things should be included in the document? Are there certain things that should not or cannot be included in your will?

Are there certain types of property that should not be included in the will?

  • Property that you purchase in a joint tenancy with your spouse or someone else will automatically pass on to the surviving joint tenant in what is called right of survivorship. It does not matter what your will says because by law the property will pass to the surviving joint tenant.
  • If you have any property that has been placed in a living trust, you cannot also direct where that property goes in your will. Placing your property in a living trust will avoid probate. Property placed in your will (not held in a joint tenancy) will go through probate before it is distributed.

Should insurance policies and retirement accounts be in the will?

  • Life insurance policies will usually require you to select a beneficiary, therefore it is not necessary to put these in the will
  • Retirement accounts include IRAs, 401Ks and any pension plans. These accounts also require you to choose a beneficiary when you fill out all the paperwork for the accounts.
  • Bonds and stocks will also go to the named beneficiary and do not need to be in your will
  • When you open a bank account you have to name a payable-upon-death beneficiary and again, does not need to be included in your will

Do not include your funeral arrangements in your will

Because the reading of the last will and testament and any probate proceedings occur well after the funeral, if you wish to have any specific arrangements, you should create a special document stating your requests, and leave this form with the executor of your estate.

Don’t expect to use your will to avoid taxes on your estate

If you are concerned about the tax implications settling your estate will bring, you may want to consider a trust instead of a will. Property placed in a trust will avoid a lot of taxation because the assets pass to the trust account and not to a beneficiary.

Wills do not avoid probate

Having a will does make the probate process go more quickly but it does not alleviate the need for probate. Ways to avoid probate is to leave your assets to a trust fund and choose the recipient of the trust as a beneficiary.

Don’t put conditions on gifts in your will

Not all conditions on gifts in wills are legal. You cannot ask the recipient to change things about marriage, divorce or their religion as a condition of receiving a gift.

Do not use a will to arrange care for a special needs individual

There is a specific type of trust called a special needs trust that should be used to manage the precise needs of a special needs individual. Do not use a will to list these requests.

If you have questions about estate planning or creating your will, you may want to consider consulting with an estate lawyer Phoenix, AZ residents rely on at Kamper Estrada, LLP.