You probably know that you need a valid will. Otherwise, your property will be dispersed based on the state’s intestacy laws instead of your preferences. Drafting an enforceable testamentary document also reduces the likelihood of conflict among family members after you’ve passed away. However, a will might just be one part of your overall estate planning strategy, and there are some items that probably should not be listed among your bequests.
If you’re preparing or revising your estate plan, a knowledgeable lawyer can advise you regarding assets you might want to leave out of your will, such as:
- Non-probate property — Certain assets are transferred to beneficiaries outside of the decedent’s estate, so will provisions concerning these items will not be honored. For example, jointly held property immediately passes to the other owner(s) upon one owner’s death. Life insurance proceeds go directly to the policy’s beneficiaries. Payable-on-death accounts and assets held in trusts are also not subject to probate.
- Property subject to conditions — Some people want to use their will to encourage or discourage certain behaviors among their loved ones. However, conditions are often vaguely worded and might not be enforceable. They can also lengthen the estate administration process. Placing assets in a trust under the supervision of a trustee who can determine if the condition has been met is often the better option.
- Distributions to loved ones with special needs — Leaving a substantial outright gift to a child or adult with disabilities can disqualify them from critical means-tested benefits such as Medicaid or Supplemental Security Income. Instead of an outright bequest, a properly drafted special needs trust should be able to provide support while preserving eligibility. A discretionary trust also gives trustees flexibility to address changing needs.
- Fixed dollar amounts — Financial circumstances often change over time, and healthcare expenses might be very high in one’s final years. A bequest valued in dollars made years or decades earlier could be inappropriately large when it comes time to administer the will. You might choose a set percentage instead.
Your estate planning attorney can develop a plan tailored to your situation and priorities. A comprehensive strategy will enable you to maintain control and minimize potential complications after you are gone.
Hayes, Berry, White & Vanzant, LLP handles a wide range of estate planning matters for Texas clients. Call us at 940-230-2386 or contact us online to schedule a consultation at our Denton, Flower Mound or Gainesville location.
