Don’t Put These Things in Your Will
When we think of things that should be in a will, we of course think of what should be included. But there are actually some things that it is best to leave out of a will. Sometimes, having too much information can cause as many problems as having too little can cause.
Most of the problems come from contradictions—something in a will that conflicts with another document that is out there, somewhere, such as a marital settlement agreement or an LLC management agreement. When a will conflicts with these non-estate planning documents, there can be a challenge to the will when it is probated.
But there are other mistakes than can be made, when creating a will.
Property in Two Places
You may know that putting property into a trust is a good way to avoid probate completely. But many people make the mistake of both putting something in a trust, and then also including that same property in a will.
Aside from the inherent confusion and contradiction—where is that property actually supposed to be, in the will or in the trust?—is the problem of figuring out whether the property needs to be probated, as things in trust generally are not subject to the probate process.
Similar to this problem is property that is included in a POD account (payable on death). These accounts transfer automatically on death, without the need for probate. But if that property or those assets are also in a will, that not only causes confusion and contradiction, but could end up leaving that property to be probated, when it never should have been.
Conditional Property or Distributions
Wills are generally for leaving property to people immediately on death, and without conditions.
If you want conditions (for example, giving money to someone once they graduate college, or if they maintain an “A” overage in school), that is better left in a trust, which can have terms and conditions and a trustee monitoring that the terms of the trust are followed, as opposed to a will.
In many cases, inheriting significant assets can threaten someone’s need based government benefits. A will just leaves all that property to the person, all at once—enough of a windfall, that the person could lose his or her benefits. You can avoid this problem by the establishment of a trust.
Just because these things shouldn’t be in a will, doesn’t mean they should be ignored or forgotten or not addressed. It just means that there are other estate planning vehicles aside from a will that may be better for this property, to avoid challenges or problems in the probate court later on.
Remember that probate is a public process. If there’s anything that you don’t potentially want revealed in public records, you may not want to leave those things in a will–a trust doesn’t go through probate and is much more private.
Don’t make mistakes in your estate planning. We can help you both with estate planning and in understanding what to expect in probate. Call the West Palm Beach estate planning lawyers at The Law Offices of Larry E. Bray today, for help.