Your Oregon will is a crucial document, but it’s not the place for every wish, preference, or instruction you might want to communicate as part of your Oregon estate plan. It’s important to be careful with what you promise, instruct, or designate in your will. Here are 7 common will mistakes you want to avoid.
1. Conditions that can’t be enforced
Sure, you might want to leave someone a part of your estate, on the condition that they take (or don’t take) certain actions. However, some conditions are not enforceable, or in some cases, even legal.
For example, requirements around religion or marital status would not be allowable or enforceable. Nor would a condition that someone could receive your vehicle as part of your estate, but only on the condition that they drive it to work.
If you have concerns about how someone might use a piece of property you bequeath to them, usually a better option is to work with an estate planning attorney to set up a trust, or work with you attorney to outline conditions that are legal and enforceable.
2. Any property that doesn’t need probate to pass to its beneficiary
Not every bequest or beneficiary has to be named in your will. Many types of bank accounts, investment accounts, life insurance policies, and other financial instruments allow you to name a beneficiary.
For any asset designated “pay on death” or “transfer on death” (known as POD and TOD, respectively), don’t include it in your will. Instead, work with the institution’s process to name any primary and/or secondary beneficiaries. Types of assets where this may be an option include:
- Bank accounts (such as checking, savings, or CDs)
- Investment/brokerage accounts and/or securities (such as bonds and stocks)
- Pension plans
- IRAs, 401(k) accounts, and other retirement accounts
- Life insurance policies
- Any other POD/TOD asset or property where you have designated a beneficiary
You do not need to address these cases in your will. In fact, since your will has to go through probate, doing so could cause delays or problems with the beneficiary process. However, there are circumstances where it may be better to have these assets pass through probate. Discuss these assets with your attorney when establishing or updating your estate plan.
3. Personal wishes or sentiments
While it’s completely understandable that you may want to communicate any sort of thoughts, wishes, or sentiments with those important to you, your will isn’t the right place for these expressions.
First and foremost, your will is a set of instructions. Your Oregon will helps your estate’s executor, your estate planning attorney, and the probate court understand, implement, and settle your estate. Any sort of personal sentiments could cause confusion or conflict during probate.
Instead of including your personal wishes or sentiments in your will, express them in a separate letter of intent instead. While not legally binding, it can be the better way to communicate your personal thoughts or feelings to those important to you.
4. Jointly owned property and assets
Your will is meant to address only property that you own outright. If you jointly own property with anyone, such as owning a home with your spouse, then you do not solely own that property, and do not need to leave instructions for it in your will.
The reason you don’t need to address joint property in your will is simple: Since the property is jointly owned, ownership typically passes automatically to the co-owner upon your death.
When it comes to determining which assets this applies to, the important phrase to look for is “joint tenancy with rights of survivorship,” or “JTWROS.” For any property co-owned under JTWROS, you do not need to address it in your will. For any property where there may be concerns about how the ownership passes, your Oregon estate attorney can advise on the right course of action.
5. Property held in a trust
Similar to jointly owned property, property held in a trust is not owned outright by you personally and does not need to be addressed in your personal will. Dispensation and management of all property in the trust can be managed by the instructions governing the trust.
This can be especially important for situations where you may be distributing assets to members a blended family, or to support a relative with special needs. In more complicated situations, your estate planning lawyer can walk you through the property that should be maintained in a trust, and what needs to be addressed in your personal will.
6. Business interests
Technically, business interests can be addressed in your will, but that doesn’t mean they should be.
Since wills go through probate, your wishes for how your business interests are transferred or disposed of may be subject to delay—or to being contested in court.
A better solution? Work with your estate planning attorney to make separate estate planning arrangements for your business interests. In addition to streamlining execution of these instructions, you may also be able to help those surviving you with estate tax or other taxation issues too.
7. Funeral arrangements
It’s understandable to want to include funeral arrangements in your will, but the logistics of your funeral versus the communication of the will don’t usually line up.
For example, your loved ones making the arrangements for your funeral, burial, or other disposal of your remains might not see or know about the contents of your will until long after the service is done.
Instead of discussing funeral arrangements in your will, outline your wishes in a separate letter of intent document, that you share in advance with your executor or other party who you wish to be in charge of managing your end-of-life services, remains disposal, etc.
In addition to preparing these instructions, inform your estate’s executor about the document, where it can be found, and any other relevant details, such as financial arrangements, burial plots, etc.
A will isn’t the right document for everything
Your will is a powerful legal document. It expresses your instructions for how your estate is to be handled, and it can address many situations and circumstances. However, your will isn’t the right document for everything pertaining to your estate.
Just as your will is a powerful document, your estate planning attorney is a knowledgeable expert who can guide you through the right solutions for your Oregon estate plan. Are you ready to get started on creating or updating your will and other estate plan instruments?