Last Will & Testament
A Last Will and Testament is supposed to be a way to communicate your wishes after you’re gone… but there are a lot of “extra” things DIY people (and even some attorneys) put into Wills that really don’t belong there and could cause problems down the road.
Why shouldn’t you be able to put whatever you want to put in a Last Will and Testament? It could cause problems. Three things you need to keep in mind about a Last Will and Testament are:
- When is it going to be read
- When is it active as a legal document
- How could it potentially be attacked if you put the wrong things into it
The Seven Things
As we go through these seven things we are going to keep the above three factors in mind.
The first thing to not put into a Last Will and Testament which may seem counterintuitive, you don’t want to put your funeral wishes into a will. Sometimes we put a little exception if it is going to be burial vs cremation. But you are far better off having those things just written out separately, not in any formal way, and certainly not handwritten out in a way it could be considered a holographic will.
You just want to be able to say look here is what I want, but leave everything kind of up to the discretion of the family or your executor in the will to make those things happen if there is any kind of conflict. Usually it just sort of happens, but the last thing you want to do is put I want this, this specific thing and this specific thing. If the family doesn’t know about it and they aren’t reading the will until after you’re gone and buried, and somewhere in your will it says cremation, now they have to go to the cost and expense of exhuming your body so it can be cremated if they buried you. Leave those things out but have stuff separately put in writing, “Here’s what I want.” Be as general as you are okay with, and let your family or the executor just follow through with filling in the gaps.
Another potential great thing, if you want to have pre-planning with the funeral home where they can go into all of those details and put them separately in place, your not jamming it into a will which is your legal document about what you want to have happen to your stuff after you have passed on, not want to have necessarily to your body.
A second thing; where to dispose of cremation ashes. It’s kind of the same thing about funeral wishes. But often even if they want to keep it simple and they want to put in their will they want cremated they keep wanting to push in well here’s where I want the ashes spread. It could be illegal to do that. One popular one that I’ve seen people do is, oh we had our honeymoon at Disney World and we have a lot of great memories. I want my ashes spread in Disney World.
That’s not going to happen. It is illegal to do that. If those were your wishes and surreptitiously some family members end up doing it, it’s still illegal but at least you are not putting it into your Last and Will and Testament for them to do something illegal. Disposition of bodies and ashes and things like that, keep that out of the will.
Third thing; now we’re talking about getting into areas that a will isn’t supposed to be covering cause it isn’t an active document and secondly it’s not likely to be read until after you are dead and that is what are some of your health care options? I want this person to be my health care agent. That doesn’t belong in a Last Will and Testament, that belongs in a Healthcare Power of Attorney.
If you’ve got some specific things that you would put into a Health Care POA and you want this person to be in charge, well they’re not going to read the will until after you are dead, and it’s not an active legal document until after you are dead. So if you put I want my best friend to be making all the health care decisions. I have three kids but I don’t think they are necessarily emotionally mature enough to handle it. I want my friend to do it and you put it in your will, no one is going to see it. The doctors are going to turn to the next of kin, which can be the three kids and they can argue and fight over it and your friend is on the sideline. They are not going to know until after you are gone if it is in a will. So leave that stuff out!