Dos and Don’ts of Will Writing
The first step in the will writing process is submitting to the fact that it is best to write a will at all. This is especially the case for individuals who have a large amount of assets. For most people, it is better to have their property pass by a will than to have it pass through intestacy. A will ensures that the right pieces of property go to those whom the deceased intended. Deciding to write the will is the first step. Now the testator must decide what to include in the will.
What You Can and Should Include
Each testator, depending on the size of their estate and beneficiaries, will have different terms and instructions in their will. However, there are certain provisions that are either standard or highly recommended. Firstly, the testator should include a clause in their will selecting an executor. An executor is named in a will as the person who will carry out the testator’s formal wishes. That includes tracking down property and transferring the property into the name of the estate in preparation to pass it on to the beneficiary. The testator should include a guardianship clause in their will. This is where the testator names the individual who will raise their children in the event that the children do not have any surviving parents. The testator must know the substance of their assets and where they are located or how they can receive it in some tangible form. This is an important aspect because the will should include instructions pointing to these specific factors. These instructions are given to the executor who will distribute the testator’s property accordingly. Further, the testator should include to whom the property will pass. In addition, the testator should choose contingent beneficiaries in case the chosen individuals do not survive the distribution of the will.
What You Cannot Include
There are a few types of assets that cannot pass by will. These are assets that pass by contract or by the operation of law. One example of such a property is real property held in joint tenancy or as husband and wife. This property grants a “right of survivorship,” which means the property is owned jointly by two individuals. If one of the owners passes away, then ownership of the real property vests in its entirety to the surviving party. Because of the survivorship right, the property will pass by law and not through a will. A life insurance plan another example of an asset that cannot pass by will. A life insurance policy is a contract between an individual and the insurance company with agreed upon terms and a named beneficiary. As such, these terms must be adhered to and cannot pass by will. The proceeds from the policy will pass according to the contract and to the named beneficiary. Retirement proceeds such as IRAs and 401Ks also include a section for a named beneficiary. As such, these assets will pass according to contract.
What You Should Not Include
For one, a testator should avoid putting his or her funeral wishes in the will. Many wills are read after a testator is buried. As a result, these wishes may come to light only after the funeral has already occurred. You cannot avoid the probate process by writing a will. So the testator cannot write an express clause in hopes of keeping the will out of probate. Avoid the mention of illegal purposes for which property will go toward or even the idea of anything illegal. This kind of dealing can bring unintended consequences to surviving friends and family members who are tied to the property.
Contact Us for Legal Assistance
It is wise to involve an attorney in the writing of your will. To learn more about the probate process and best practices when writing a will, contact an experienced estate-planning attorney at Meyer & Spencer, P.C. We serve individuals and families in Pleasantville, Westchester, Mahopac and Putnam Counties.
Resources:
law.cornell.edu/wex/joint_tenancy
law.cornell.edu/wex/executor
