These are items that do NOT belong in your Will.
- Funeral and Burial Instructions. Since a Will is about planning for your eventual death, it would make sense to include funeral, burial, and/or cremation instructions in the document, right? However, these ideas do not belong in your Will. First, such wishes would not actually be legally enforceable. A Will nominates a Personal Representative, disposes of your assets, and nominates a guardian for your minor children, if necessary. It cannot force people to otherwise act in a certain way after your death, even with regard to your remains. Second, as a practical matter, your Will may not be located or read until well after the funeral already takes places. Rather, you should either write out such instructions separately, discuss your wishes with your family, or else complete an Authorization for Final Disposition form.
- Contingent Gifts. When preparing a Will, it is often tempting to put restrictions on gifts to family members in order to influence their behavior. For instance, only giving a particular gift if the recipient has graduated college, or gotten married, or not having a criminal record. However, you should be extremely careful when considering including such contingencies. Many are unenforceable under the law. Even if such a provision would be legal, they are often difficult to draft without creating ambiguities. If you do want to include restrictions on when family members can receive their gifts, you will need to consider using a Revocable Trust.
- Healthcare Directives and Powers of Attorney. By definition, a Will applies to events after your death. Therefore, it is not the correct document for planning for healthcare or financial decisions during your incapacity. Rather, you need to also draft a Healthcare Power of Attorney and a Durable Financial Power of Attorney.
- Gifts to Loved Ones with Special Needs. You must be extremely careful when using a Will to bequeath assets to a disabled family member. Receiving a lump sum gift may make them ineligible for certain government benefits, such as Supplemental Security Income (SSI). You also have to be wary of giving money to a person who may not be capable of managing their own finances. If you are contemplating gifting an inheritance to someone in this situation, you will need to create a Trust. In particular, Special Needs Trusts can be used to protect a recipient’s disability benefits, while also allowing the funds to be properly managed on their behalf.