What Should You Include In Your Last Will and Testament?

Monday, October 18, 2021

Back in 2016, 66% of Americans did not have a last will and testament. That was before COVID-19. And while COVID-19 didn't significantly alter the number of wills in the population, the number of young adults with a will increased 63% since 2020, which means that as of 2021, 18-34-year-olds are more likely to have a will than 35-50-year-olds for the first time.

Why all the fuss about death?

Well, if you don't have a last will and testament, state law requires that your estate passes through probate. The problem is that most estates are not valuable enough to be worth going through probate, and much of the estate value will be gone by the time probate concludes. And even if you have a last will and testament, including the wrong assets can invalidate the whole document.

Don't make one of the most common estate planning mistakes. Here's what should and shouldn't be included in your will.

What is a Last Will and Testament?

A last will and testament is the best-recognized estate planning document on the book. There's a good reason for that—it's the right fit for many people.

Basically, a last will and testament is a legal document communicating the wishes of the deceased regarding their assets, dependents, and survivors. It outlines how assets should be distributed as well as other matters the deceased was responsible for. For example, your will often includes instructions on who receives your property, but it can also include instructions for who gets legal custody of minor children.

This forms the foundation of your entire estate plan. There is more to an estate plan than a will, but the will is typically the guiding document.

What Should Be Included?

Technically, there are several types of wills, but most people deal with four types:

  1. Simple
  2. Testamentary trust
  3. Joint
  4. Living

This is important because each will comes with its own guidelines, and even these guidelines can be state-specific. For our purposes here, we're talking about a simple will, which decides who receives your assets and guardianship of minor children.

Property that can pass through a simple will includes:

  • Real property (real estate, land holdings, etc.)
  • Intangible property (stocks, bonds, business ownership, etc.)
  • Unproductive property (cars, furniture, artwork, jewelry, etc.)
  • Cash (money in checking accounts, savings accounts, and money market accounts)

You can also address your residuary estate and residuary beneficiary. Your residuary estate is simply any property not specifically named in the will as left to anyone, and the residuary beneficiary inherits any remaining assets not passed to named beneficiaries.

What Shouldn't Be Included?

However, there are certain things that cannot legally be included in your will—and including them may invalidate the whole document. These include (but are not limited to):

  • Life insurance
  • Retirement accounts
  • Jointly held property
  • Digital estate (iTunes purchases, eBooks, and other digital property)
  • Burial plans or funeral wishes
  • Illegal gifts
  • Illegal requests

Those last two should be glaringly obvious, but it bears repeating—your will is a binding legal document, not the place to crack jokes. So while you might be literally dying to have your relatives burn your house down in honor of your death or inherit certain items of questionable legality, the law does not look kindly on such requests.

The Estate Planners You Need to Protect Your Family

Your last will and testament is the foundation of your estate plan, but the larger estate planning process is highly complex. It touches on several areas of the law, from real estate law to social security law to title insurance (depending on your unique estate). The point is this: if you have last wishes that you want respected, you need an experienced estate planning attorney on your side.

At Monastra & Grater LLC, we are here for you and your family when you need it most. We are experienced estate planning attorneys who can help you through every step of the process, guided by the philosophy of making the process as simple and painless as possible. That way, you can focus on making the most of your time.

If you need to speak with an attorney about your options, get in touch today to learn how we can help.

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