OLG LEGAL COMMENTARY:
Attorney Christina Miner
It’s important to understand that even though there are things that you should leave out of your will, drafting your last will and testament is one of the most important steps one can take. The will identifies how you want your property and assets divided and who you want to get them when you are gone. While a will can include a variety of terms, there are some things that should not be included in your will.
1. Funeral and or Burial Instructions
A will is often not located until after the funeral or burial. If you include these types of instructions in your will, most likely these wishes will not be discovered until after your funeral. It is usually better to convey your wishes ahead of time by speaking with the loved one who will most likely be responsible for handling this task or by purchasing a prepaid funeral/burial plan.
2. Leaving Gifts to a Beneficiary with Special Needs
A parent may think that leaving a large gift to a child or other loved one with special needs will ensure that the loved one will be able to live their lives to the fullest or that they will have the ability to receive all the care they need. The last will and testament is not the place to bequest an outright gift to someone with special needs. A person with special needs receiving public benefits often times can only have a limited income and limited assets. Anything over the designated amount can disqualify someone with special needs from continuing to receive benefits. There are certain types of trusts, such as a special needs trust, that specifically address the management of the specific needs of a person with special needs. The trust can be a standalone special needs trust or even a trust created within the last will and testament.
3. Leaving gifts or money for an illegal purpose
This does not happen very often, but it could be that someone tries to make a gift that says “to Joe, so long as he uses my car to transport immigrants over the border.” Inserting an illegal purpose could invalidate the entire will.
4. Assets with named beneficiaries
Life insurance, retirement plans, and financial accounts usually require a designated beneficiary be identified. Upon your death, those assets will be transferred to the named beneficiary, so they cannot be distributed by your will.
5. Jointly Owned Property
Tenants by the Entirety and Joint Tenants with Right of Survivorship mean that when you or the other joint tenant dies, the survivor automatically owns the property in full. If a gift of joint tenancy or tenants by the entirety is made in a will, it will fail. It can’t be done.
6. Property owned by a Trust
The last will and testament cannot make a gift of any assets that are owned by the trust. The property owned by the living trust automatically goes to the beneficiaries and is managed by the trustee. If you want to leave the asset to someone else or change the terms, it must be done by an amendment to the trust, not the will.
7. Conditions placed on Gifts in your Last Will and Testament
Some people want to put conditions on gifts, and that can be okay, but one must be careful. Putting conditions such as “to Mary, so long as she marries a (insert religion) man” or “to Mary, so long as she divorces her bum husband” are not allowable and the will may be held invalid. Conditions such as “to Mary, so long as she finishes college” are okay.
If you are going to take the time to create a last will and testament, make sure that your time has not been wasted. Speak to an estate planning attorney who will ensure that the will is drafted properly and will be upheld in court.
Christina Miner is a Wills and Estate Planning Attorney with The Orlando Law Group. Her practice focuses on estate planning, guardianship, probate and trust administration. She has worked for private law firms, was assistant regional counsel for the Office of Criminal Conflict and Civil Regional Counsel – 5th District, and was senior attorney for the Florida Department of Children and Families. She earned her Juris Doctorate from FAMU College of Law, and earned her bachelor’s and master’s from the University of Central Florida.
To contact Christina, visit www.TheOrlandoLawGroup.com or call (407) 512-4394.