What You Should Never Put in Your Will – 8 Things to Avoid

Your will is one of the most important legal documents you will create during your lifetime. It’s a powerful tool that allows you to control who gets your assets so that your loved ones are protected according to your wishes. Sadly, many well-intentioned people accidentally undermine their wishes by including problematic items in their wills.

As estate planning attorneys, we’ve witnessed firsthand the chaos and legal nightmares that can arise when wills contain troublesome provisions. From listing life insurance policies to applying overly restrictive conditions, these missteps can derail even the most carefully crafted plans.

That’s why it’s crucial to understand what should never be included in your will. Here are some of the pitfalls you want to avoid to prevent conflicts, legal challenges, and other problems for your loved ones.

Here are the 8 Things You Should Never Include in a Will

1. Non-Probate Assets (Life Insurance, Retirement Accounts)

One of the most common mistakes people make is listing life insurance policies and retirement accounts in their wills. These assets are passed down through beneficiary designations and do not go through probate.

Including these assets in your will can create legal challenges, as those beneficiary designations typically take precedence over the instructions in your will.

2. Property Rights for Minors

Under Minnesota law, minors cannot directly inherit or control assets until they reach the age of 18. Leaving property directly to a minor child or grandchild in your will can create significant complications and potential mismanagement of those assets.

To ensure your minor beneficiaries are properly cared for, and their inheritance is responsibly managed, it’s essential to establish a trust designed specifically for their benefit. This legal instrument allows you to appoint a trustee who will oversee the management and distribution of the assets according to your wishes until the child reaches the age of majority or another predetermined age that you specify.

By creating a trust for your minor beneficiaries, you can:

• Appoint a responsible trustee to manage the assets on their behalf
• Provide guidelines on how the trust assets should be used for the child’s care, education, and overall well-being
• Ensure the child’s inheritance is protected from mismanagement or outside influences
• Avoid the need for court-supervised guardianship proceedings

At Safe Harbor Estate Law, our experienced attorneys can guide you through establishing a customized trust for your minor beneficiaries. We understand the unique considerations and challenges involved in protecting and providing for children and grandchildren, and we’ll work closely with you to create a comprehensive plan that safeguards their future.

3. Jointly Owned Property and Assets with Right of Survivorship

Assets that are jointly owned or have survivorship rights, such as joint tenancy or tenancy by the entirety, do not need to be included in your will. Upon your passing, these assets will automatically transfer to the surviving owner(s) without going through probate.

Including jointly owned property or property with survivorship rights in your will can create unnecessary confusion and potential conflicts.

4. Illegal or Unethical Requests

While drafting your will, avoid including any requests or provisions that violate the law. For example, you don’t want to leave firearms to someone who doesn’t have legal authority to own them. These types of provisions will likely create legal challenges or even lead to portions of your will being invalidated or deemed unenforceable.

5. Funeral Instructions or Wishes

While it may seem logical to include your funeral preferences in your will, this document is often not read until after the funeral has already taken place. Instead, it’s better to communicate your wishes through a separate letter of instruction or by pre-planning your funeral arrangements directly with a funeral home. This ensures that your loved ones can carry out your desires without any delays or confusion.

6. Conditions or Restrictions on Inheritances

Including conditions or restrictions on inheritances, whether to encourage certain behaviors or discourage others, can create legal challenges and may be deemed unenforceable by the courts. Overly restrictive conditions or those that attempt to control a beneficiary’s personal life choices may also face legal challenges. Reasonable conditions can be included, but generally, they work much better in a trust.

7. Inheritances for Family Members With Special Needs

Leaving an outright inheritance to someone who receives need-based government benefits, such as Medicaid or Supplemental Security Income (SSI), can potentially disqualify them from those crucial programs. This is because an inheritance would be considered an asset that exceeds the resource limits for eligibility. Government benefits would stop until your loved one spends the inheritance down to $2000 or $3000, for example. In essence, then your gift would go to the government instead of to your loved one.

To avoid jeopardizing your loved one’s s access to essential services and care, it’s crucial to plan their inheritance carefully. One solution is to establish a specialized trust designed to supplement, rather than replace, their government benefits.

Special Needs Trusts and Supplemental Needs Trusts

Special needs trusts and supplemental needs trusts are legal instruments designed to provide financial support for individuals with disabilities without jeopardizing their eligibility for government benefits like Medicaid or Supplemental Security Income (SSI).

Supplemental needs trusts are preferred because if your loved one dies with money still in the trust, you can decide where that money goes instead of having the remaining money go to the government. Very specific language is required for the proper creation of a special needs trust. It’s crucial to work with an experienced special needs trust lawyer like Safe Harbor Estate Law to ensure your supplemental needs specialized trust is properly established and funded outside of your will.

8. Business Interests and Complex Assets

Many people own businesses, real estate, collectibles, or other unique assets. Proper planning is essential to ensure these assets are transferred to your loved ones smoothly and without legal challenges.

Distributing business assets often requires specialized planning and consideration of buy-sell agreements, operating agreements, and other legal documents governing the business or partnership.

Listing these assets in your will may cause conflicts with existing agreements, leading to disputes among beneficiaries or business partners.

Valuable, complex assets like real estate, collectibles, or other unique items require proper valuation and distribution plans. Simply listing these assets in your will without clear instructions or valuations can lead to confusion, disputes, and potential legal challenges among your loved ones.

In the case of real estate, it normally will cause a public, time consuming and expensive probate. Consider creating specialized trusts or implementing specific provisions to ensure these assets are properly managed and distributed according to your intentions.

The Role of an Estate Planning Attorney

Your will is just one component of a comprehensive estate plan. Working with an experienced estate planning attorney like those at Safe Harbor Estate Law can help you navigate the complexities of estate planning, protect vulnerable loved ones, , and ensure a smooth transition of your assets..

Our attorneys take the time to understand your specific circumstances, from your assets, the dynamics of your family situation, and your goals. We then work closely with you to develop a customized estate plan that addresses potential pitfalls and ensures your wishes are carried out seamlessly.

Protecting your legacy and providing for your loved ones is an honor, and we take that responsibility seriously. Our attorneys approach each plan with the utmost professionalism, sensitivity, and dedication, ensuring that your final wishes are respected and carried out according to your intentions.

Don’t leave your legacy to chance. Take the first step towards protecting what is most important to you by reaching out to Safe Harbor Estate Law today. Our team of dedicated professionals is ready to guide you through the estate planning process, providing the expertise, personalized attention, and peace of mind you deserve.