Your will won’t work. If you’re like most people, this is a bold and confusing statement. You know that everyone needs a will, but what’s the point in having one if it doesn’t work? Why won’t your will work? Your will won’t work the way you want because it doesn’t control most property.
1. Tangible personal property
The term, “tangible personal property,” refers to what you call your “stuff.” It is your personal property such as your furniture, clothing, jewelry, art, and tools. It is everything you own that does not have a title.
Often, tangible personal property is the only thing that your will controls. Of course, if you have transferred your tangible personal property into your revocable living trust, the will will not control even that.
2. Revocable living trust property
Property titled in the name of your revocable living trust is controlled by the terms of your trust, not by your will.
3. Jointly held property
Jointly held property has a survivorship provision so that at the death of one owner, the property passes automatically and by operation of law to the surviving owner(s). This is the way most married couples own their assets: the home, bank accounts, and investment accounts are all jointly owned. The will has no effect on jointly owned property.
4. Beneficiary designation property
Life insurance and retirement accounts have a beneficiary. They are ruled by contract law so the assets pass to the named beneficiary regardless of what your will provides.
5. POD/TOD accounts
Pay on death and transfer on death accounts have a designated beneficiary so these assets transfer to the named beneficiary and your will has no effect on them.
You, and everyone over the age of 18, need a will. In the will, you name your executor to settle your estate and guardians to care for your minor children. But if you want your estate plan to control the property discussed above, you need to plan to make that happen; and if you want one comprehensive estate plan to make that happen, you need to consider whether your planning is best done through a will, a trust, or another estate planning method.
If you have questions or concerns about why your will will or will not work, consult with a qualified estate planning attorney.
John’s practice focuses on the use of Wills and Living Trusts in Estate Planning to help individuals protect their families and preserve their legacies after their deaths, but his practice also focuses on the critical issues of protecting individuals with dementia or other diminished capacity, assisting individuals in qualifying for Medicaid and other government benefits to offset the costs of long-term care, and providing special needs planning.
John is admitted to practice law in North Carolina, South Carolina, Kentucky, and Ohio, and he is accredited by the Department of Veterans Affairs.
- What You Need to Know about the Medicaid Look-Back Rule - January 3, 2023
- How to Pass Down Your Legacy in Your Estate Plan - October 3, 2022
- Practical Steps to Take after Receiving a Terminal Diagnosis - September 30, 2022
