What Not to Include in Your Will

On Behalf of | Apr 7, 2020 | estate planning


Drafting a will is often an essential part of a person’s estate planning. However, there are a few things that should not be included in your will; rather, they should be addressed in another aspect of your estate plan.

Contact the California estate planning attorneys at Galanti & Copenhaver, Inc. if you are ready to get started with your estate planning. Our attorneys have many years of experience preparing estate plans and handling all aspects of the estate planning process. Contact our office today to schedule a consultation to get started preparing your will or other estate plans.

Some Types of Property Should Not Be Included in Your Will

There are some types of property that should not be included in your will. If you own community property with the right of survivorship or property held in joint tenancy or in tenancy by the entirety, you should not include these property types in your will. These properties will automatically pass to the co-owner in the event of your death. This process happens automatically–nothing you could write in your will would override that.

You also should not include property in your will if it is already included in a living trust. A living trust is set up for the specific purpose of transferring property when the grantor dies. The living trust also has the advantage of not having to go through probate. Also, you have the option to change the terms of a revocable trust throughout your lifetime, since the trust documents can be amended–but you cannot do this with a will.

Certain Types of Financial Accounts and Insurance Policies Should Not Be Included in Your Will

There are also some types of financial accounts that cannot be included in your will. The proceeds from retirement financial accounts, pensions, and 401(k) plans and IRAs will pass directly to the beneficiary who you named on the documents associated with these plans and accounts. 

Life insurance and annuity policies also automatically pass directly to the named beneficiary of the policies. In many cases, the beneficiary will be the decedent’s spouse or children.

If you have a pay-on-death bank account with a named beneficiary, then the money in the account automatically will go to that beneficiary. Some other types of property also are “transfer-on-death” assets. These assets may include stocks and bonds, as well as vehicles or real estate. The assets will also automatically pass to the named beneficiary.

Other Things That You Should Not Include in Your Will

One thing you should be aware of is that wills are subject to probate proceedings, which are public. If you have certain assets that you want to have the distribution of remain more private, you should consider incorporating a trust into your estate plans. Probate proceedings can take a long time, but having a will often speeds up the process more than going without one.

Consider Estate Taxes

Another thing to keep in mind is that a will is subject to estate taxes. If you have a substantial estate, and your goal is to avoid estate taxes for your beneficiaries, you may want to use a trust as part of your estate plan. Your estate planning attorney can help you determine whether using a trust in your estate plans makes sense for you.

Consider a Special Needs Trust When Appropriate

If you want to use your funds to make sure that a disabled loved one is cared for after your death, this should be set up through a special needs trust rather than stated as part of your will. A special needs trust is a type of trust that serves this purpose, and also will typically allow your loved one to remain eligible for government benefits.

Avoid Leaving Funeral Instructions

It may be tempting to include your wishes for your funeral in your will, but this is something best left out of it. Funeral arrangements are often made within the days after a person has passed. Your loved ones may be making funeral arrangements and related decisions long before your will is reviewed, and estate settling proceedings have begun. 

The best way to handle this is to inform a close friend or family member about any specific wishes or instructions you have regarding a funeral or burial. It may be helpful to explain your instructions and wishes in writing, but this should be done in a separate document and not included in your estate plans.

The attorneys at Galanti & Copenhaver, Inc. are here to help you get started drafting your will or to help you with any other estate planning needs. Contact us today at 707-538-4711 fill out our online contact form to begin planning for your future.