One of the most important aspects of writing a will is determining who will be your beneficiaries. Beneficiaries are the people or organizations you name in your will to receive your property.
For some people, naming beneficiaries is simple. This is especially true for those who want “everything to go to my spouse” or “everything to be divided evenly among my three children.” However, for others, choosing beneficiaries can be complicated and difficult.
Who Can Be a Beneficiary?
Some common beneficiaries include:
- Your spouse
- Children and grandchildren
- Other relatives
- Organizations, such as churches and universities
Married people commonly name their spouse as a beneficiary in their will. However, there is no obligation to do so, and some people choose to give some of their property to other loved ones or leave their property to their spouse through other estate planning tools.
That said, most common law states do have laws that protect spouses from being either forgotten or completely disinherited. In these states, your spouse can contest the will if you leave them a smaller portion of the estate than what's required by law. The amount is usually one-half or one-third, depending on the state.
Community property states (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin) don’t have these spousal protections because spouses share earnings during the course of the marriage. In these states you can leave your separate property and your portion of community property to whomever you wish.
Legally, your children include any children born to you or adopted by you. For will-making purposes, your step-children are not your children in the eyes of the law unless you have adopted them (or possibly if you have raised them as your own). If you have questions about whether or not a person is legally your child, get help from a lawyer—the legal status of this relationship could have a significant impact on who gets your property.
In almost every state, you don't have to leave anything to your children. However, most states also have laws that protect children from being accidentally forgotten. So if you do want to disinherit a child, you should do so explicitly – so that it could not be inferred that you left them nothing by mistake. The best way to explicitly disinherit a child is to name the child in the will and to state that you leave that child nothing. If you specifically don't mention one or more of your children in the will, they could try to claim a share of your estate.
One exception to the ability to totally disinherit a child is in Florida, where minor children may have a right to receive (at least an interest in) the family home.
If you leave property to beneficiaries who are under 18, you can also use your will to provide property management for those gifts. The most common ways to do this are:
- Name a custodian under the Uniform Transfer to Minors Act (UTMA) for those gifts. The young person will receive the gifts outright at age 18-25, depending on the state. The UTMA is available in every state except South Carolina.
- Leave the gift in a trust. In your will, you set up a trust that will go into effect when you die. The trustee you name will manage the property while the minor is young, and will distribute the property outright when the minor reaches an age you determine. Children’s trusts are available in any state.
If you don’t use your will to provide property management for gifts you leave to minors, property management will be set up by the probate court.
You can leave property to any person or organization. Just make sure you describe the beneficiary in terms that will make it clear who the intended recipient should be. (See below.)
Your Pet Cannot Be a Beneficiary
Although your pet may seem like a family member, your pet is actually your property. This means that you cannot use your will to leave property to your pet (because your pet cannot own property) and also that you can use your will to leave your pet to someone else.
If you do leave your pet to someone else, consider leaving that person some money as well, to cover your pet’s expenses. There will be no way to ensure that the person you name will use the money for that purpose, but hopefully you will trust that person to do the right thing.
If you want more insurance that your pet will be well cared for when you die, consider creating a pet trust. In the trust, you name a trustee and describe how you want the pet to be cared for, and then you will “fund” the trust with enough money to care for your pet. To create a pet trust, first learn more, then see a lawyer for help.
When you name a beneficiary in your will, use a clear and precise name that will be easily understood by the people who read your will. Name alternates, in case your first choice beneficiary dies before you.
For people, use full legal names. You can also add the person’s relationship to you (like “spouse” “friend,” or “brother”) or an “AKA” (also known as) for nicknames or former names.
For an organization like a church or school, contact the organization’s giving department to find out what name they want you to use. If it’s a big organization—like a state school—which name you use could have an effect on their taxes and on how they can use the money. If you have any specific wishes for the money--like if you want your gift to be used to build a new fountain or for tuition assistance—get help from an attorney to help you make sure your wishes can and will be followed.
You can also leave your executor a separate letter that provides additional information about your beneficiaries and all other people named in your will. In that letter, you could provide each person’s full name, address, birthdate, and relationship to you. An important reason to do it this way (instead of putting this information in your will) is that when your will is admitted to probate after you die, it becomes a public document.
Update the your will as your circumstances change due to marriage, divorce, move to a different state, or the death or birth of a beneficiary.
If You Do Not Name Beneficiaries
If you do not name beneficiaries for your property—either in a will or through other estate planning tools—state law determines who will get your property. This is called dying intestate. Intestacy laws give your property to your closest relatives, like your spouse, children, parents, or siblings—depending on your state and your circumstances.
Questions for Your Attorney
- Can my family members challenge my will if they don’t like it?
- How can I provide financial stability for my wife, while also passing my property onto my children from a prior marriage?
- Can I leave property to a charity or school with conditions of my choosing, for example, how my gift is to be used?