Wills offer many benefits to help plan for the future. While a will is an important part of estate planning that provides peace of mind and certain protections for your family and heirs, there are certain things a will cannot do.
What is a Will?
A Will is a legal document that specifies who will receive your possessions when you die. It also can specify who will be responsible for taking care of your minor children. If you have a Will, but no Trust, your estate (“estate” is a legal term, meaning all of your real estate, money, and possessions) may have to pass through probate court, which can be an expensive and time-consuming process for the loved ones you leave behind.
For this reason, many people choose to use a Trust, in addition to a Will, to determine who will receive their possessions. When your possessions are held in trust, they do not have to pass through probate court.
7 Things a Will Cannot Do:
1. Plan Your Funeral
While it is possible to include your funeral instructions in your will, one of the disadvantages of a will is that it is usually not located or read until days or weeks after the death. The best way to help your family plan your funeral is to pre-plan it yourself with the funeral home or leave separate written instructions and tell people where to find them.
2. A Will Does Not Help Your Family Avoid Probate
Probate is a legal court procedure that validates a will and puts your wishes into effect. Wills can be devised to develop trusts, and the property used to fund these trusts will not have to go through probate. However, other property dealt with in a will that does not already have a beneficiary designation (like a “transfer upon death” designation) will have to go through probate. So, if you want to help minimize the extent/duration of the probate process for your loved ones, you may want to consider setting up trusts (or other tools).
3. Avoid Estate Taxes
The federal government and some states apply an estate tax to estates that are valued over a certain amount (usually millions of dollars). Your will cannot avoid this tax using a will, but there are other ways to reduce estate taxes, such as some types of trusts.
4. Care For Your Pets
Animals do not have the legal capacity to own property, so leaving money to your pet in your will won’t ensure your pet will be cared for. What many people do instead is they leave the pet with someone who they know will provide it with good care. You can also leave that person any property or money to help out with the care of the pet.
5. A Will Does Not Provide Directly For a Child With Special Needs
By now it should be clear that a will serves a simple yet key purpose: to provide instructions for the distribution of assets after death (of the testator). If you wish to provide funds and care to someone with special needs, you’ll need to set up a Special Needs Trust (SNT), which will support them with extra income without running the risk of losing essential government benefits.
6. Put Certain Conditions on Gifts
There are also a few legal limitations on what you can do in a will. For example, you cannot leave a gift that is contingent on the marriage, divorce, or change of religion of a recipient. You can, however, try to influence lesser matters.
7. Transfer Certain Classes of Property
When learning what a last will is, you may be surprised to find that there are types of property that a will cannot transfer when you die. Property that is owned as joint tenancy, life insurance policies, retirement accounts, transfer on death accounts, or any property you have placed in a trust will pass upon your death automatically because of the way it is legally owned. Your will cannot affect these types of property.
Do You Need an Attorney for Help with Probate Issues?
A skilled and knowledgeable probate attorney will make the probate process easier and run much more smoothly. Timing is incredibly important, and state laws vary widely. A probate attorney can help you understand your state’s laws, and will ensure all deadlines are met. Intestate estates and contested wills could especially benefit from the assistance of an experienced probate attorney.
If you would like some guidance as you go through the process, a probate lawyer can help. To schedule a meeting with an attorney from Olson Probate, please call 714-847-2500.