Dutcher & Zatkowsky | RochesterElderLaw.com Logo
What A Will Can and Cannot Do For You
What A Will Can and Cannot Do For You
May 11, 2021
Estate law book and Last Will and Testament

A will is a legally binding directive stating who will receive your property upon your death and is an important part of a comprehensive estate plan. If you die without one ( intestate ), the state will distribute your assets and property via state law and quite possibly at odds with your wishes.  Having a will allows you to appoint a legal representative or executor to carry out your bequests and name a guardian for your children. There is no doubting the importance of having a will, however there are some limitations you should be aware of.

Although a will can be the primary mechanism to transfer property on death, it does not cover all property situations. Some classes of property you are unable to distribute through a will are:

  • Property held in trust  – A trust will have named beneficiaries who will receive the trust’s property according to the trust terms and not based on what is in your will (unless specifically stated in the trust).
  • Pay on death accounts  – Informally known as PODs, the original account owner names a beneficiary(s) to whom the assets in the account pass automatically upon the owner’s death.
  • Life Insurance – Life insurance benefits pass to your named beneficiary(s) in the life insurance policy and are not affected by your will.
  • Jointly held property  – Co-owned property is not distributed through your will. Joint tenants have an equal ownership interest in the property, and when one joint tenant dies, their interest ceases to exist. The other joint tenant now fully owns the entire property.
  • Retirement plans  – In a similar manner to life insurance, money in an IRA or 401(k) passes to the named beneficiary(s). According to federal law, a surviving spouse is generally the automatic beneficiary of a 401(k); however, there are some exceptions. An IRA permits you to name a beneficiary(s).
  • Investments in transfer on death accounts  – Some accounts holding stocks and bonds will transfer on death to the named beneficiary(s). Like POD accounts, transfer on death accounts bypass probate and go directly to the beneficiary(s).

A will does not allow you to avoid probate . By necessity, a will must go through the probate process in order to allow beneficiaries to inherit property. It can take months to get through probate, and it involves expenses like an attorney, executor, and court fees. Also, your will and everything associated with it (property you own, who your beneficiaries are, etc.) becomes part of the public record that anyone can access.

Keep funeral instructions outside of your will . The reality is your funeral may have already taken place before someone finds and reads your will, which can take days, even weeks. If your funeral or memorial service is important to you, the best way to help your family is to pre-plan, making arrangements with a funeral home. You can leave written instructions with the family as to your plans.

Your pets cannot inherit through your will . An animal is legally unable to inherit money or property from you. If you want your pets to be cared for after you die, leave money to a person willing to take care of your animals. The person you select can inherit your pets since a pet is considered property. You can also set up a pet trust or a pet protection agreement, either of which provides for your pet’s care.

Provisions for a child on government benefits are best in a trust . It is best to create a special needs trust to provide for a child with special needs or a child who is receiving government benefits. The trust can hold money for your child’s care without affecting those benefits.

There are ways to circumvent the limitations of a will by creating trusts, setting up pay-on-death accounts, and ensuring a beneficiary is named on all accounts that permit them. Your will is an important component of a comprehensive estate plan, but it can’t do everything.

We would be happy to discuss the pros and cons of having a will and other options available to you as part of your overall estate plan – Contact us today.

more news you can use
A black piggy bank with the words Long Term Care in white chalk surrounded by coins
26 Mar, 2024
Medicaid is a joint federal and state program that provides vital assistance to seniors with limited assets and income to afford necessary long-term healthcare. With the rising costs of extended care, which can range from $60,000 to over $100,000 annually, many individuals will require Medicaid support at some point. While the specific timing and level of care needs are unpredictable, proactive Medicaid planning is crucial to protect your hard-earned assets, home, retirement savings, and legacy for loved ones.
Older couple smiling and shaking hands with a male attorney.
19 Mar, 2024
As we age, countless questions and concerns can start weighing on our minds - How will I pay for long-term care? What happens to my assets and life savings when I'm gone? Who will make important financial and medical decisions for me if I become incapacitated? Trying to figure it all out on your own can be daunting and stressful. That's where an experienced elder law attorney can step in to be your trusted guide and advisor.
A person holding a wooden block that says strategic planning.
12 Mar, 2024
When someone passes away, their assets often have to go through the costly, time-consuming, and public legal process known as probate before being distributed to heirs. However, using trusts as part of an estate plan can help avoid the probate nightmare. There are two main types of trusts used in estate planning - revocable trusts and irrevocable trusts...
Show More

Still have questions?

Tell us about your situation.

Schedule a Consult
Share by: