By Jordan Rosenfeld

Featuring Asher Rubinstein, Partner, Gallet Dreyer & Berkey, LLP

While nobody likes to think about their own end date, putting together a will and related legal documents makes it more likely that your loved ones will have the smoothest process handling your estate after death and that your wishes will be followed. Writing a will is not as simple as just slapping together a list of desires; however, there are some things you should not put in your will. Estate planning experts explain which ones.

Joint Accounts

You don’t need to pass joint accounts or accounts with beneficiaries’ names already on them through your will because including them can lead to confusion and open the estate to potential litigation, according to Stuart Schoenfeld, a partner in the trusts and estates practice of Capell Barnett Matalon & Schoenfeld LLP in New York.

Schoenfeld said, “You don’t need to include assets like these that go directly to a beneficiary in your will because they pass automatically to the designee upon your death.”

Personal and Private Wishes

Wills should mostly be about transitioning assets from your estate to loved ones and beneficiaries, Schoenfeld explained.

“Wills are not the place to make a statement about family relations or to use as a platform to address personal issues from beyond the grave,” he said. “Why not use your will to settle old scores? Because your will is a public document, and people you don’t intend can see it.”

Business Interests for an Active Business

Don’t transfer business interests in your will, particularly a running business, Schoenfeld said, because it will be very difficult for that business to function while your estate is being settled.

He said, “Better to think in advance about an effective succession/estate plan to transition your business or your business interests.”

Life Insurance

Another thing to leave out of a will is your life insurance.

“If you are a high-net-worth individual with a taxable estate, it would not be wise to pass your life insurance policy through your will because you could forfeit up to half of it or a large percentage of it to estate taxes,” Schoenfeld said. “Pass on your life insurance policies through a life insurance trust.”

Secret or Secure Information

Wills go through a court procedure called probate, which involves a will being admitted into a court of law — a public process. That means people can access the court’s records, find the will and view the contents.

Asher Rubinstein — a trusts and estates, asset protection and tax law attorney with Gallet Dreyer & Berkey LLP in New York — said, “Therefore, wills should not include confidential information such as bank account numbers, access codes, PINs, passwords, keys to crypto, etc.”

Significant Assets Left to One’s Heirs

If a will is the way to get assets to one’s heirs, then it might make sense to bequeath significant assets to them through a will. However, Rubinstein said this is not a great plan because those assets will become entangled with the court probate process.

“Courts are slow and public,” Rubinstein said. “Bequeathing one’s business interests by will, for example, means that a court may have oversight over the business during the probate process. Probate also provides a forum for someone to contest the will, and now the business is held up by estate litigation, which will take time, lawyers and money.”

Instead, leave these through a trust.

“A proper trust document can convey the same business interests and financial assets,” he said, “and the trust would avoid the court probate process.”

Ambiguity and Inconsistency

Wills depend on clear, actionable language. So, for example, Rubinstein said, don’t word something like so: “My favorite painting to my daughter, Chloe.” It may not be clear which painting is your favorite, or both daughters might want the same painting, etc.

Obsolete Provisions

As changes occur in life, it’s very important to update your will, Rubinstein said. For example, “John wrote his will in 2010, leaving everything to his wife. In 2022, John and his wife divorced. John passed away in 2023 without updating his will.

“Joanne drafted a will in 2005 that left all of her assets ‘equally, to my two children.’ In 2015, Joanne had a third child. In 2023, Joanne passed away without updating her will.”

Even if the law would be able to determine the correct result in each case, Rubinstein said, “It would probably take a court action to reach that result, which would require lawyers, legal fees and months of time for the court to rule.”

Assets That Go Through Probate

In general, the process of probating any assets should be avoided where possible because probate is time consuming, often taking 9-15 months, and can be expensive with court costs and attorney’s fees, according to David Bross Sr., estate planner with Truepoint Wealth Counsel, an OSBA-certified specialist in estate planning.

“The good news is that only individually owned assets with no beneficiary designation are subject to probate,” Bross said. “So, it’s recommended that property be owned jointly or in trust, or assets such as bank accounts, retirement accounts and life insurance have a beneficiary designation.”

Tangible Personal Property

Bross also recommended that you not bequest tangible personal property, such as jewelry, because it too falls to the probate court.

“This creates a public forum for passing the assets, and things such as appraisal may be required,” he said. “Instead, assign the property to a trust or leave a memorandum outlining the distribution of the property with the executor.”

Funeral and Burial Instructions

Although it may seem logical to include your funeral and burial preferences in your will, it’s not the most practical approach, according to Rob Fricker, an attorney with Fricker Law Office in Milwaukee.

“Wills are often read after funeral arrangements have been made,” Fricker said, “which means your wishes may not be known in time. Instead, consider discussing your preferences with your loved ones and documenting them separately.”

Conditions on Gifts

Avoid attaching conditions to gifts in your will, Fricker said.

“While you may have specific desires for how your assets should be used,” he said, “imposing too many restrictions can complicate matters and potentially lead to disputes among beneficiaries.”

It’s better to express your intentions through conversations, trusts, or other legal documents.

Unenforceable Conditions

Fricker also recommended caution in including conditions that may be unenforceable or against public policy.

“For example, you cannot include discriminatory clauses, illegal activities or conditions that violate someone’s rights,” he said. “These conditions can render your entire will or specific provisions invalid.”