Beyond the Basics: 8 Critical Details Often Missed in a Will

Writing a will is one of the most important steps you can take to protect your loved ones and ensure your wishes are followed. You have likely considered the major assets, like your home and savings accounts. But a truly effective will goes deeper, covering specific details that are frequently overlooked but can cause significant confusion and conflict later.

1. The Crucial "Residuary Clause"

One of the most vital yet commonly forgotten parts of a will is the residuary clause. Think of this as the safety net for your estate. It specifies who will receive any property or assets not explicitly gifted to someone else in the will.

Why is this so important? You might acquire new assets after you write your will, or an intended inheritance might fail if a beneficiary passes away before you do. Without a residuary clause, these “leftover” assets are distributed according to state intestacy laws, which means a court decides who gets them. This might not align with your wishes at all.

Example: You leave your classic car to your brother and your house to your daughter. But you forget to mention your stock portfolio, which you purchased after writing the will. Without a residuary clause stating, “I give the remainder of my estate to my daughter,” the court will distribute that portfolio based on state law, potentially giving a share to distant relatives you never intended to include.

2. Planning for Your Digital Assets

In today’s world, a significant portion of our lives exists online. Your digital assets have both sentimental and financial value, but they are very easy to overlook in a will. If you do not plan for them, your family may be unable to access important accounts or preserve precious memories.

Your digital estate can include:

  • Financial Accounts: Online banking portals, cryptocurrency wallets (like those for Bitcoin or Ethereum), PayPal or Venmo balances, and brokerage accounts.
  • Social Media and Email: Facebook, Instagram, LinkedIn, and email accounts. Do you want them memorialized or deleted? Your will can specify this.
  • Cloud Storage: Services like Apple’s iCloud, Google Drive, and Dropbox often hold priceless family photos, videos, and important documents.
  • Intellectual Property: Blogs, websites, or online businesses that generate revenue.

Create a secure list of these assets, including usernames and instructions for accessing them. You can name a “digital executor” in your will, a person you trust to manage, distribute, or delete these assets according to your wishes.

3. Naming Contingent Beneficiaries and Fiduciaries

It is common to name an executor to manage your estate and beneficiaries to inherit your assets. But what happens if your first choice is unable or unwilling to take on the role when the time comes?

This is why naming backups, or “contingent” appointments, is critical.

  • Backup Executor: If your primary executor has passed away, becomes ill, or simply declines the responsibility, the court will have to appoint someone. Naming a successor executor ensures your estate is managed by someone you trust.
  • Backup Guardians: For parents of minor children, this is non-negotiable. You should name a guardian to care for your children, but you must also name a backup guardian in case your first choice cannot serve.
  • Contingent Beneficiaries: If a beneficiary passes away before you, where does their inheritance go? A well-drafted will specifies a contingent beneficiary to receive those assets, preventing confusion and potential legal battles.

4. Using a Personal Property Memorandum

Your will might state that your personal belongings should be divided among your children, but this can lead to arguments over sentimental items. Who gets your mother’s wedding ring, your collection of antique books, or your favorite painting?

Many states allow you to reference a “personal property memorandum” in your will. This is a separate, less formal document where you can list specific items of tangible personal property and designate who should receive them. The advantage is that you can often update this memorandum without formally amending your will, making it easier to adjust as you acquire new items or change your mind. This simple document can be a powerful tool for preventing family disputes.

5. Providing Clear Instructions for Your Pets

Legally, pets are considered property. This means you cannot leave money directly to your dog or cat in your will. However, you absolutely can and should make arrangements for their care.

Forgetting to do so leaves your beloved animals in a vulnerable position. To properly provide for them, your will should:

  • Name a Caretaker: Explicitly designate a person who has agreed to take care of your pets.
  • Name a Backup Caretaker: Just like with guardians for children, have a second person in mind.
  • Provide Funds: Leave a specific sum of money to the caretaker for the purpose of covering your pet’s expenses, such as food, vet bills, and grooming.

6. Expressing Funeral and Burial Wishes

While funeral instructions in a will are not always legally binding, they provide invaluable guidance and comfort to your family during a difficult time. Making these decisions in advance relieves your loved ones of the stress of guessing what you would have wanted.

Consider including your preferences on:

  • Burial or cremation
  • The location for your final resting place
  • Details about a memorial service or funeral
  • Information on whether you have prepaid for any arrangements

Clearly stating your wishes can prevent disagreements among family members and ensure your final farewell reflects your values.

7. Reviewing Account Beneficiary Designations

This is one of the most critical and misunderstood aspects of estate planning. Many financial accounts allow you to name a beneficiary directly. These designations override your will.

It does not matter what your will says; the assets in these accounts will go directly to the person named as the beneficiary. Common accounts with beneficiary designations include:

  • Life insurance policies
  • Retirement accounts (401(k)s, IRAs)
  • Annuities
  • Payable-on-death (POD) or transfer-on-death (TOD) bank and brokerage accounts

Example: You get divorced and update your will to leave everything to your children. However, you forget to update the beneficiary form on your $500,000 life insurance policy, which still lists your ex-spouse. Upon your death, your ex-spouse will receive the entire life insurance payout, regardless of what your will says. Always review these designations after major life events like marriage, divorce, birth, or death.

8. Including a "No-Contest" Clause

A “no-contest” clause, or in terrorem clause, is a provision in a will that states if a beneficiary challenges the validity of the will and loses, they will forfeit their inheritance.

This can be a powerful tool to discourage frivolous lawsuits and challenges from disgruntled family members who feel they did not receive what they deserved. While the enforceability of these clauses varies by state, including one can provide an extra layer of security and increase the likelihood that your wishes will be carried out without a costly and painful court battle.

Frequently Asked Questions

What makes a will legally valid? While laws vary by state, a will is generally considered valid if it is in writing, signed by the person making the will (the testator), and signed by at least two competent witnesses who saw the testator sign the document. The testator must also be of sound mind and not under undue influence when signing.

Do I need a lawyer to write my will? It is not legally required to use a lawyer. There are many online services and software, like LegalZoom or WillMaker, that can help you create a will. However, for complex situations involving significant assets, blended families, or potential challenges, consulting with an estate planning attorney is highly recommended to ensure your will is comprehensive and legally sound.

How often should I review and update my will? You should review your will every three to five years, or after any major life event. This includes events like marriage, divorce, the birth or adoption of a child, the death of a beneficiary or executor, or a significant change in your financial situation.