Summary: Siedentopf Law explains the limitations of a Last Will & Testament and the type of functions it cannot — or should not — do.
A Last Will & Testament plays an important role within the field of estate planning. With a will, you can memorialize decisions about who will inherit your property, or who will serve as guardian for your children. Wills are valuable tools – but they are not appropriate in every situation. There are some things that a will won’t do. Understanding those limitations can make a significant difference when it comes to the estate planning process. Here are some examples of things a will cannot (or should not) do:
Memorialize Funeral Instructions
While it is perfectly okay to leave funeral instructions in a will, it might not be the most effective way to share those final wishes. Typically, a person’s will is not located or even read for days or weeks after their death. That could be too late to help those making decisions about funeral arrangements or memorial services. Instead of leaving instructions in a will, it might be better to write those instructions down on a separate document and leave them with the estate executor or funeral home of choice.
Transfer Certain Types of Property
When you think of a Last Will & Testament, you might envision a list of funds or items earmarked for specific friends or family members. But, in actuality, there are certain types of property that cannot be transferred via a will. Those include: 1) property owned as joint tenancy with right of survivorship, 2) life insurance policies, 3) retirement accounts, 4) transfer on death accounts, 5) payable-on-death accounts, or 6) or any property placed in a trust. Many of these items already have a designated co-owner, or have their own means of transfer.
Leave Money or Property to Pets
An animal cannot legally inherit money or property from their owners. But just because people cannot include their pets in their will, does not mean that their pet’s care cannot be ensured. Individuals can specify in their will that they want to leave their pets with another person (because pets are considered property). They can also leave money to that other person, for any pet-related expenses. In addition to wills, pet owners can also set up a trust for the care of their animals. (For more information, read our blog “Can I Include My Pet(s) In My Estate Plan?”).
“Probate” is the procedure in which a court validates a will and executes its instructions. This process cannot be avoided if the will includes instructions about the transfer of property. It should also be noted that any property left in a will may be tied up for a long time, as probate can take several months or more. (For more information on avoiding probate on your home, check out our video.)
Avoid Estate Tax
The federal government applies an “estate tax” to those estates which are valued over a certain amount. (As of 2016, that amount is $5.45 million.) An individual cannot use their will as a means of avoiding this estate tax. There are, however, other ways of reducing federal estate taxes – certain types of trusts, for example. Some states also apply “state estate tax” in addition to the federal estate tax. Fortunately, the state of Georgia does not have its own “state estate tax;” only the federal applies.
Arrange Care for a Beneficiary
For those individuals who have a child, spouse, relative or other person who needs special or long-term care – a will is not the appropriate vehicle to provide for them. It is much more effective to create a trust tailored to the beneficiary and their needs. This special trust would contain finances for the person’s care, all without jeopardizing their government benefits.
© Sarah Siedentopf and Siedentopf Law, 2018. Unauthorized use and/or duplication of this material without express and written permission from this site’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Siedentopf Law and EstateLawAtlanta.com with appropriate and specific direction to the original content.
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