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What Not to Include in Your Estate Planning Documents

Estate Planning Documents
What Not to Include in Your Estate Planning Documents

One important purpose of estate planning is to facilitate the transfer of ownership of your money and property to your family and loved ones when you pass away. For this transfer to be as stress-free and efficient as possible, it is crucial that estate planning documents be thorough and provide the necessary information. Nevertheless, there is some information that should never be included in your estate planning documents.

Social Security Numbers

You may think that it would make sense to refer to yourself and your family members or loved ones by using their Social Security numbers to ensure that they are correctly identified when the time comes. It is important to provide information in your estate planning documents that is sufficient to properly identify your beneficiaries, but using full legal names, including middle name or initial, is typically adequate. Providing Social Security numbers would leave the individual vulnerable to the risk of identity theft because there are several estate planning documents that may become part of the public record. A will may need to be filed with the probate court at your death, or a power of attorney or certificate of trust may need to be recorded if real estate is transferred. Once these documents are part of the public record, complete strangers will have access to this private information by making a simple request of the probate court or recording office and paying a small fee. Considering that in 2022 alone, the Federal Trade Commission received 1.1 million reports of identity theft,[1] Social Security numbers should never be included in anyone’s estate plan.

Keep in mind that you may need to provide your family members’ Social Security numbers when you designate them as beneficiaries of your retirement or other accounts, but those forms never become part of the public record and therefore are not as vulnerable to identity thieves.

Account Numbers

Similarly, unauthorized people may use account numbers to steal money from your accounts if those numbers are listed in your estate plan and become part of the public record. It is important to keep your account numbers in a secure location rather than including them in your will. You also should be cautious about making them readily available to family members unless you have designated one or more of them to act as your agent under a power of attorney, guardian, trustee, or a similar role that imposes a duty on them to act in the best interests of both you and your future beneficiaries.

Think carefully about who you choose to act in these roles because they will have access to important financial information. Keep in mind that although a family member may often be the best choice, sometimes even family members prove to be untrustworthy. In October 2022, Kile and Debra Madsen were found guilty in New Hampshire of theft after they made unauthorized purchases, payments, and withdrawals from Kile’s father’s bank account between December 2015 and August 2016.[2] Kile’s father, who was eighty-six when he died in 2018, suffered from dementia. The pair were sentenced to serve several years in state prison and forbidden from caring for any elderly, disabled, or impaired adult.

Rather than including account numbers in your estate plan, you should protect yourself by taking steps to avoid the disclosure of account numbers and other financial information except to someone you trust and have legally designated to act on your behalf.

Disparaging Remarks

Many people have difficult family relationships. It may be tempting for a willmaker to “deliberately and needlessly render[] articulate by his Will all his pent up frustrations, his desire for revenge unanswerable by the living victim, his unreasoned prejudices, his desires for spite past the grave.”[3] The 1912 book Ancient, Curious and Famous Wills[4] mentions the following barbed bequest included in the will of Philip, Fifth Earl of Pembroke, who died in 1669: “I give nothing to my Lord Saye, and I do make him this legacy willingly, because I know that he will faithfully distribute it unto the poor.”

Some may think that their will is a means by which they can have the last word, so to speak, in a contentious relationship. However, a few courts have held an estate or the executor of an estate liable for testamentary libel, that is, publishing a false statement that is damaging to a person’s reputation in a will. For example, in the 1914 case Harris v. Nashville Trust Co.,[5] the plaintiff’s uncle included the following in a codicil to his will: “And this sum of two hundred and fifty (250) Dollars to John Woodfin, $1.00 to William Woodfin, and $1.00 to Cleo Woodfin, the illegitimate children of my brother James Woodfin, is all that they are ever to have of my estate.” At that time, illegitimacy was viewed very negatively, so Cleo filed suit against the executor of the estate for damages, alleging that she was the legitimate child of her parents and that the codicil had been maliciously added to the will to “blacken her character.” Although the executor claimed that no cause of action existed against the executor allowing Cleo to pursue her claim for damages, the court disagreed and allowed the case to proceed. So it is prudent to call upon the better angels of your nature and use your will as a means of blessing those you love instead of blasting those you dislike.

We Can Help

As experienced estate planning attorneys, we will make sure that the information necessary to achieve your wishes is included in your estate planning documents and that anything that would risk damage to your estate and ultimately, your beneficiaries, is excluded. Call us today to set up an appointment so you can look forward to gaining the peace of mind that comes with knowing you have put a plan in place that protects you and your loved ones.


References

  • New FTC Data Show Consumers Reported Losing Nearly $8.8 Billion to Scams in 2022, Fed. Trade Comm’n (Feb. 23, 2023), https://www.ftc.gov/news-events/news/press-releases/2023/02/new-ftc-data-show-consumers-reported-losing-nearly-88-billion-scams-2022.

  • N.H. Dep’t of Justice, Kile and Debora Madsen Sentenced to State Prison for Stealing from Elderly Relative, Off. Att’y Gen. (Oct. 3, 2022), https://www.doj.nh.gov/news/2022/20221003-madsen-sentenced.htm#:~:text=Madsen%20to%20each%20serve%20one,years%20after%20release%20from%20incarceration.

  • Virgil M. Harris, Ancient, Curious and Famous Wills 290, https://archive.org/stream/ancientcuriousfa00harrrich/ancientcuriousfa00harrrich_djvu.txt.

  • 162 S.W. 584 (Tenn. 1918).