As an Orange County estate lawyer, I know that most people assume that all of their final wishes can be handled through a simple Last Will and Testament. While a will is designed to handle many postmortem matters, it is not the only legal tool you may need at your disposal to accomplish your goals. Here are six specific items that you should not, or can not, put in your will.
#1: Illegal or unlawful conditions, or extreme conditions that would compel someone to do or not do something.
A court will not honor a provision that requires someone to do something illegal or unlawful in order to inherit assets. The courts will also not honor provisions in a will that interfere with a pre-existing contract. Finally, you can not use your will to impose extreme conditions on your loved ones in order to inherit your assets.
#2: Funeral Plans and Arrangements.
Technically, you can put these in your will, but there’s a solid reason to consider listing your burial or funeral plans elsewhere. In a lot of cases, the will is not read or produced until after the funeral. That means that by the time your loved ones learn about your wishes, it will be too late. Consider creating a Final Arraignments document or Disposition of Remains document to guide your loved ones instead.
#3: Your pets…as heirs.
While they may be like your children, your pets aren’t legally capable of receiving or controlling property. A probate court judge will never rule in favor of Mr. Paws inheriting your house. The solution to leaving money behind for the care of your pets is to create a Pet Trust.
#4: Things you own jointly and assets that already have a beneficiary.
You don’t have to will your house to your spouse if you two own it jointly; it will pass to him or her without court involvement. You also can’t will your house to anyone else if you own it jointly with your spouse, either. Joint property survives the death of one of the owners.
Likewise, named beneficiaries on accounts such as Life Insurance policies or 401(k) plans will trump whatever is listed in your will. Be sure to check your beneficiary designations regularly to ensure your accounts will pass to the people you desire.
#5: Guardianship of your adult children.
As a parent, you want what’s best for your young children. You can designate a legal guardian who can raise your children in your will when they’re still minors. However, once your child turns 18 years old, he or she is a legal adult, and you can’t designate a guardian, even if that child is still dependent on you.
There are still legal tools that can help you protect and parent your adult children from the grave, such as a living trust. Your attorney can help you evaluate your options based on your wishes for your family.
#6: Digital property…that no one can access.
Currently, there are no clear laws for handling digital property. This means that if you die with an online bank account and no one else knows the password, your heirs or estate administrator may not be able to access it, no matter who you will the account to. If you’re planning on leaving digital assets, put your usernames, passwords, hint questions and answers together so these accounts can be accessed when you’re gone.
If you’re unsure about what you can and can’t put in your will, speak to an Orange County estate lawyer about drafting a will that complies with the law and allows you the most freedom to distribute your estate as you wish. To schedule a consultation at our Newport Beach law firm, simply call (949) 260-1400.