Writing and signing a will seems so formal and, well, final.
Does it really matter what happens to your stuff once you’re gone? The answer is yes.
You don’t want random strangers deciding who gets your collection of concert stubs or the bicycle on which you logged so many miles. And you definitely don’t want your friends and family squabbling over the last $200 in your checking account or the $5,000 vacation fund you worked so hard to accumulate.
There’s so much information out there about what actually goes into a will. New York City estate attorney Michael C. Levy helps us separate myth from fact.
Myth #1: I can leave everything to my cat (or dog or parakeet)
Believe it or not, you can. But it’s a bit more complicated than a simple yes or no.
“You can’t technically leave property directly to a pet because a pet has no means to accept the property,” Levy says. “They are not human, and they are incapable of understanding the concept of money or property.”
What you can do, is set up a pet trust and leave all the money, real estate and property you want to that trust to be administered by an executor of your choice.
Don’t think it happens? That’s what heiress Leona Helmsley did when she died in 2007, leaving her beloved Maltese named Trouble a whopping $12 million.
A judge eventually slashed Trouble’s extravagant inheritance down to $2 million — the remaining $10 million went back into her charitable trust — but the pooch lived a lavish life until she died in 2011 at the age of 12.
Myth #2: I can just write my wishes on a piece of paper and give it to my mom
“That’s not a good idea because most states require certain formalities to have a will entered into probate and actually considered valid,” Levy says.
Generally speaking, you must state your final wishes and intentions in writing, and have the document signed by two witnesses who must affirm that they saw you sign the will, Levy says.
“If you cannot prove that the will was validly signed, it will ultimately not be admitted to probate,” Levy says. “The piece of paper to mom is not going to work.”
Myth #3: I can put in whatever I want, right? It’s my will!
Actually, no. The probate court will not uphold anything that’s illegal or against public policy.
Levy has also seen wills that place conditions on heirs that they be married or marry a person of a particular religious faith. None of this is likely to hold water in court, he says.
And explicitly disinheriting someone sets up the estate to be challenged in court by the disgruntled relative, so that’s usually frowned on as well, Levy says.
If you’re dreaming of strange and creative ways for your money after you die, best to consult a lawyer before penning those grand plans.
Myth #4: I have one copy of my will. I can just keep it in a sock drawer or a safety deposit box
Don’t do it, Levy says.
In New York, if the client has possession of the original will and loses it, the probate court will assume it’s been revoked and will consider your estate without a will.
That’s why Levy strongly recommends leaving the original with your estate attorney and keeping a copy for your own records.
“But if you have a safe place where you know it’s not going to get lost and you know it’s not going to be turned into a paper airplane by a child or used as a ‘wee-wee’ pad by a dog that’s fine,” he says.
Connecticut estate planning firm Cipparone & Zaccaro based in New London, Connecticut, also suggests leaving it with your attorney. Other sensible options, they say, are in a fireproof safe either at your house or with the executor.
Levy did issue one caveat about safety deposit boxes — don’t lose the key. If you lose the key and then die, the bank is going to require proof that your executor has permission to access your safety deposit box … permission still located inside the safety deposit box.
Just let your lawyer keep it, Levy says.
Myth #5: I don’t need a lawyer to write a will!
No, technically you don’t. A quick online search of “online will documents” turns up dozens of do-it-yourself offerings.
But be careful what forms you use. And since state estate laws vary wildly, a one-size fits all type of legal document may not hold up in court.
“If serious legal mistakes are made, you’ll never know because they will not become apparent until you die,” Combs writes. “And the people left to deal with the mistakes are the people you’re probably creating your will to protect.”