What Should Not be Included in a Will

All last will and testaments will need to go through the probate process, but that does not mean all of your assets do. Those assets that do not need to be included in your will are known as non-probate estate assets.

Spoken-for Property

Property that shouldn’t be included in your will is any asset that is not owned solely by you or is already spoken for upon your death.

There is considerable overlap between this list and the non-probate assets list.

The most common examples of this property include:

  • Property held with rights of survivorship, including community property with rights of survivorship and property held in joint tenancy or tenancy by the entirety. These will automatically go to the co-owner upon your death and can’t be changed by anything you write in your will.
  • Property held in a living trust, which is specifically set up to ease the transfer of your property upon your death and to bypass probate. The beneficiaries of your living trust automatically receive any property held by the trust after you die.
  • Payable On Death accounts:
    • Life insurance or annuity proceeds with a named beneficiary goes directly to them following your death.
    • Proceeds from retirement plans, pensions, IRAs, and 401(k)s will pass directly to any beneficiary you name on the forms.
    • Bank accounts with a beneficiary transfer automatically after your death.
    • Property, such as stocks, bonds, real estate, or vehicles, can be designated as transfer-on-death. This allows you to name a beneficiary who will receive the property upon your death.
  • Life estates given to you by others that you have no further control or power over before your death, essentially an irrevocable trust.

Certain Requests or Stipulations

Since the settling of the estate and the probate proceedings occur after the funeral, any specific instructions for the wake, funeral, or burial left in the will may not be available until well after the fact.

While you may include requests and make stipulations on certain gifts in your will, there are some that may be inappropriate.

  • While you can make some gifts conditional for the sake of incentive such as graduating from college or for specific reasons such as to buy a house, you cannot do this to force a beneficiary to do something such as getting divorced, change religions, or not have a same sex marriage.
  • You cannot stipulate that the gift either be subject to doing something illegal or used for illegal purposes.

There are some things that can be in a will, but are better off done with a trust. This includes providing for a dependent with special needs or a pet.

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