Fitzgerald & McGroarty PA
800-465-1307 609-365-0036

Certain properties shouldn't go into your will

Just about everyone will tell you that a will allows you to leave the property you own at your death to anyone you wish. Without leaving those instructions, the state of New Jersey would decide where all of your property goes. Right?

Not necessarily. If you place certain assets into your will, it could cause a stir within your family upon your death. This is because putting them into your will does not provide the necessary legal right to transfer the property.

What properties can't go into your will?

It isn't that certain types of property can't go into a will, it's the laws regarding their transfer that makes them ineligible for inclusion in it. Properties subject to the following laws will pass to the beneficiary or beneficiaries of your choice through "operation of law," which means that they go to the person or people you choose without having to go through probate:

  • Any property you put into a living trust goes to beneficiaries through that document. Since the trust owns the property, you can't give it away in your will.
  • Any property you own in joint tenancy with rights of survivorship automatically passes to the other owner -- the surviving tenant -- upon your death. It does not go through probate.
  • Any monies in your retirement plan pass to the beneficiary or beneficiaries you designated on a beneficiary designation form provided by the plan manager.
  • Any life insurance proceeds from a policy for which you filled out a beneficiary designation form does not need to go through probate.
  • Any monies left in a bank account for which you provided a pay-on-death designation to the financial institution go directly to that party.
  • Any bonds and stocks that you designated to be given to a particular beneficiary or beneficiaries bypass probate as well.

As you can see, these properties are already going to particular individuals without the need for probate. Bypassing this process allows those you love quick access to the property instead of waiting until after the completion of the probate process. There are also certain things you should not do in your will.

For instance, you may want to avoid leaving gifts for your pets or making arrangements for someone with special needs. If you want to leave behind instructions for your funeral, doing so in your will probably won't work. Most families do not consider reviewing a will until after the funeral and burial. Your loved ones will not know what you wanted until it's too late. Before putting anything into your will, you may want to make sure that it will accomplish your goals.

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Linwood, NJ 08221

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