What Not to Put in Your Will

Hey everyone. Welcome to another episode of Protect Your Nest, where we discuss estate planning for you, your family, and your legacy. I’m estate planning attorney Brandon Lawrence, the lawyer for the city. We are discussing Wills today. I’m going to give you some tips on what to do to make your Will simple and effective. I previously talked about getting financially eligible to have Medicaid pay for your long-term nursing home stay and using wills and trust to protect your assets for your family to use after you pass away.

Today I’m going to give you some tips on what to not put in your Will.

What Is a Holographic Will?

First of all, in Kentucky you can write your own Will. They call these holographic Wills. There are rules and regulations you have to follow in order for a Will to be considered legal and valid in Kentucky.

In order for the holographic Will, which is what they call it to be valid and legal, it has to entirely be handwritten in your own handwriting. Secondly, it has to be signed and dated. You don’t have to have a witness to this Will, but after you die, someone familiar with your handwriting has to testify that the Will is entirely in your handwriting. And this is all covered in the statute, which is Kentucky Revised Statutes, I think it’s 394.040. And I wanted to get that information out there because some people, they like to write their own Wills and they like to be precise and have everything definitely in their words. And these are the rules that you’ve got to follow for what they call a holographic Will. Have it entirely in your own handwriting.

So, I took a little detour for folks like that. Now let’s get into what not to put in your Will.

People come into my office a lot and they say, Hey, they’ve got things written down on what they want in their Will, what they want in their planning trust, things of that nature. And that’s perfectly fine. That’s awesome. That’s great. That shows that you’ve done a little bit of prep before you’ve actually come into the office. You might have Googled, ChatGPT, whatever you wanted to do and decided to come in the office after we, I’ve gone over in previous episodes like I’ve met with people either in person or via Zoom. You filled out the intake, told me what your wishes, what you wanted, what you wanted to do and leave for your family. And you’ve expressed that. We are sitting down actually either via zoom or in person to make everything that you want to happen, happen and tell you what I can do for you as far as your estate planning.

So what you want to do is one of the things, I’ll just give you a couple examples of things that people come in and say that they want to put in their Will. And like I said, it’s not a bad thing, but I’m going to tell you a couple things that you probably do not want, well, you definitely do not want to put in your Will.

Don’t Designate Beneficiaries of Your Retirement Account in Your Will

Now, one of those things though, most everyone’s working, you got an IRA, you’ve contributed to it, your job’s contributed to it or either you and probably you have put a percentage of your earnings in that IRA. But when you fill that IRA out, you’re probably already named the beneficiary when you open your IRA. So that’s one thing that you do not have to put in your Will because that beneficiary designation that you put in the IRA, that’s going to take precedent over anything that you put in your Will.

So, you don’t need to do that if you want to, I guess if you want to switch a beneficiary up, you can contact the IRA financial institution or your job and do it that way. But the Will is not going to supersede the IRA beneficiary that you’ve already put in place, and you probably put that in place years ago anyway. So that’s one thing you don’t want to put in your will, nothing to do with the IRA beneficiary.

Funeral Arrangements Shouldn’t Go in Your Will

Another thing, funeral arrangements. We talked a little about pre-planning funeral arrangements to get eligible for Medicaid in the previous talk that we’ve had. Now in this particular instance, when you’re talking about Wills, you don’t want to put anything about funeral arrangements in your Will as far as if you want to be cremated or buried that type of situation because say for instance, if you pass away, you get buried and the reading of the Will doesn’t occur until maybe weeks later. So then when people finally read the Will and you said, I wanted to be cremated, then the family’s probably got a decision to make.

Are they going to dig you up and then cremate you? Or are they going to have to live with the fact that they did not comply with your wishes even though they didn’t see that until afterwards? So what you probably want to do is make a separate document to express what you want done as far as your funeral arrangements informally or formally to a family member or whoever that you’re trusting to deal with to make those arrangements so they’ll know that when that time comes for you to be properly put away, whether you want to be buried or cremated, whatever you want, and they comply with your wishes.

Don’t Use Your Will to Tell People You Want to be an Organ Donor

Now, number three, organ donation. Organ donation is a really big deal because a lot of times people are interested in donating their organs if something happens to them, if they’re able to donate to another individual that’s going to need them when they’re no longer able to use them, they pass away. So whatever the circumstance is going to be, because that’s extremely important.

There are a lot of people out there on organ donation lists that need certain organs that can be donated. So the organ donation is something that you want to do and make a decision to make your wishes known before you pass away, obviously, because once if they’re going to bury or cremate you, then there’s nothing that could be done.

You want to make those wishes known to someone, prior to you passing away. So there are several ways to do it, I guess. I know when you go to renew your driver’s license, you can check a box and they’ll put a heart or something on your driver’s license to show that you are an organ donor. So that’s an important situation. That’s an important thing that you really want to make known prior to you passing away. So that’s three, organ donation.

Life Support Instructions Don’t Belong in Your Will

The fourth thing that I would say would be life support machine wishes, because as I previously stated, in previous videos don’t always, well, obviously we don’t know how we’re going to pass and we don’t always instantaneously pass away. It is not always a car crash or something and that instantly you die. Sometimes your life can be prolonged by a life support machine, ventilator, things like that. So what you want to do is make that wish known.

Some people would like to maximize and try to live as long as they can on the machine. Some people are of the opposite opinion. They say, Hey, look, if I cannot be myself, if I’m going to be a burden, I’m going to rack up a huge medical bill and I’m not going to know what’s going on or be able to function, I don’t want to have artificial, have a machine keep me alive. And that’s fine and good.

But what you probably want to do is express that through a Living Will, not necessarily a Last Will and Testament.

Trust Beneficiaries Are Listed in the Trust Documents, Not Your Will

The next thing will be a trust. We talked about trust as well. So, if your assets a property like your home or any type of money, a monetary gift that you want to give to someone, make them the trust beneficiary. That is going to take precedent over any type of Will. The trust is already set pretty much while you’re living. The Will’s not going to take effect until after you pass. But by that time, the trust is going to dictate where any type of monetary gift is going to go or any property that you’ve put in that trust and you fund it properly.

So that’s another thing. We talked about that before, properly funding a trust. But the trust is going to take precedent over anything and everything including the Will. I’m telling you these things to make sure that the trust that you open is got everything that you want in it and you’re giving who you want everything to go to. Make sure who you’re giving that to and it’s set to go to. That’s who you want it to go to at that particular time because a Will is not going to invalidate that trust.

What if You Have an LLC?

On another note, a lot of the next one is going to be an LLC. Okay? The assets in the LLC are governed by the LLC. So a lot of people have property, real property in the LLC, like real estate. You might have a couple pieces of property and you might have them titled. Say you’ve got four or five properties, you’ll title them in an LLC, but upon your death you want to give, divide those properties and give them each individually to a particular person.

Now, it’s difficult to do that in a Will once you have those properties in the LLC because the assets are going to be governed by the LLC. You can’t really just say, Hey, I want to give John my property on Fifth Street, but that’s titled in the LLC with six other properties. So there’s a couple ways to deal with that.

What you could do, you could retitle all the properties into individual LLCs and you could leave a membership interest to John or whomever you want to leave that to. Alright? You can leave the membership interest to specific individuals. But that’s one way to deal with an LLC situation. Alright?

Don’t Designate Life Insurance Beneficiaries in Your Will

And also along the lines of a trust, or going back to the IRA, life insurance policies, a lot of people have life insurance policies that you’ve already designated beneficiaries to when you took out that life insurance policy. So the beneficiary you designated when you took out the life insurance policy, they take precedent over any Will beneficiary designation.

So again, make sure that you check your documents every few years and make sure that you still want to leave those assets and make the beneficiaries that you have designated already. If you want to keep those people as your beneficiary, then you can stick with that. Or if you want to change it, you’ve got to go through the proper channels to change those policies or those designations.

Keep Your Will Brief

And the last thing I would say would be when you’re going to leave something to someone, say for instance you want leave, whatever you’re going to leave to somebody. I would say brevity is the key.

You don’t need to write a book or a novel to explain why. Say for instance, you’re going to give something to your niece. You’re going to give something to your niece because she took care of you because she brought you food, she took you to the movies when you were bored, things like that. That’s fine, that’s awesome. You can tell that to her. You make a video or something or tell it to her personally. But the Will is not the place to put that to explain why you’re going to do something for someone. You don’t have to do that. You just give it to them and then make sure everything is signed, documented, witnessed and filed. So those was pretty much approaches. It’s pretty simple approaches that you want to take in order to make your wishes known and make sure that your wishes are or followed through with.

Brandon Can Help You Draft Your Will and Estate Plan

I wanted to just reiterate, if you’re looking it up, the KRS that I was talking about is 394.040, but I just wanted to make sure that you got that. Because like I said, people come in all the time. I’m more than happy to sit down and talk with you via Zoom, in person, come to your home. As a matter of fact, a few weeks ago I just went to some folks’ home and they wanted to take care of some things as far as leaving some houses, some real estate and some money. And they had some decisions to make as far as who they wanted the trustee to be. And they wanted, originally a couple, they wanted co-trustees. And we talked about options and what may be the best thing for them. And they had some decisions to make as far as who they wanted to be as the trustee, what they wanted to leave. And they ultimately came to a decision and we documented that and they were happy with the outcome.

So, the best thing to do, like I said, the best part of my job is sitting down with people, talking to them and making what they want to happen, making that happen, and explaining to them the process. And like I said, a lot of people come in with some prerequisite knowledge and they come in, they looked at some videos. They’ve YouTubed some stuff maybe, or looked at some podcasts, which you can always check me out on the LawyerForTheCity.org and look at these podcasts and also look on YouTube.

And the more information that you have is fantastic. And I’m here as a roadmap to help you get down the road to get where you want to go and take the knowledge that you have, and the experience and knowledge that I’ve got and help you get to where you want to go.

You can always find more information that I’m putting out all the time. Like and subscribe on the YouTube channel so you can always get information and look at old videos that I’ve posted already, to answer any questions that I might not have gone over in this one. And we’re going to continue to try to give you information all the time and get you where you ultimately want to go to make sure that you’re protecting your nest. And until the next time, I’m estate planning attorney Brandon Lawrence. Let’s talk it over.