Why Having a Will Is Essential — and What It Can’t Do

A will is one of the most important legal documents you can create as part of a comprehensive estate plan. It is a legally binding directive that states who will receive your property after your death. Without a will — known as dying intestate— your state’s laws will determine how your property is distributed. This process may not reflect your wishes and could even create unnecessary stress or conflict for your loved ones.

Having a will allows you to:

• Appoint an executor (legal representative) to administer your estate and carry out your wishes.
• Name a guardian for your minor children.
• Provide clear guidance to avoid disputes among heirs.

That said, while a will is a powerful tool, it does have limitations you should understand.

What a Will Cannot Do

Although a will is often the primary way to transfer property after death, it does not control every type of asset. Here are several categories of property that pass outside of a will:

• Property Held in Trust – Assets owned by a trust will go to the trust’s beneficiaries as outlined in the trust document, not your will (unless specifically referenced).
• Pay-on-Death (POD) Accounts – Funds in POD accounts automatically transfer to the named beneficiaries at the owner’s death, bypassing probate.
• Life Insurance – Proceeds go directly to the beneficiaries you named on the policy.
• Jointly Owned Property – Property owned with rights of survivorship passes automatically to the surviving co-owner.
• Retirement Accounts (IRA, 401(k)) – These accounts pass directly to the named beneficiaries. Federal law generally designates a surviving spouse as the default 401(k) beneficiary, but there are exceptions.
• Transfer-on-Death (TOD) Accounts – Similar to POD accounts, these accounts transfer stocks, bonds, or other investments directly to the named beneficiaries.

Wills and Probate

A common misconception is that a will helps you avoid probate. In reality, a will must go through probate to be legally recognized. Probate can take several months and involves attorney fees, executor fees, and court costs. Additionally, your will — including information about your assets, beneficiaries, and bequests — becomes public record once filed.

Funeral Instructions Should Be Kept Separate

Including funeral or memorial service instructions in your will is not recommended. Wills are often read after services have already occurred. Instead, pre-plan your funeral arrangements with a funeral home and leave written instructions with your family so they can carry out your wishes promptly.

Caring for Pets After Death

Legally, pets cannot inherit property or money through your will. If you want to ensure your animals are cared for after your passing, you can:

• Leave funds to a trusted individual who will take responsibility for your pets.
• Create a pet trust or pet protection agreement that legally provides for your pet’s ongoing care.

Special Needs Planning

If you have a child receiving government benefits or a child with special needs, it’s crucial to avoid leaving them assets outright through your will. Doing so could jeopardize their benefits. Instead, create a special needs trust to hold and manage assets on their behalf. This allows you to provide for their care without affecting eligibility for public assistance programs.

Planning Beyond a Will

A will is just one part of a strong estate plan. You can complement it with:

• Trusts to avoid probate and maintain privacy.
• Beneficiary designations for retirement accounts, life insurance, and transfer-on-death accounts.
• POD accounts to simplify the transfer of cash assets.

Take the Next Step

Your will is a critical piece of your legacy, but it cannot do everything. The best estate plan often includes a combination of legal tools tailored to your unique situation.

If you’d like to review your current will or explore additional planning strategies, our team is here to help. Call us today at (207) 848-5600 or visit our CONTACT page to schedule a consultation.