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Estate planning allows you to provide for your loved ones, protect your assets, and ensure your final wishes are carried out when you pass away. Estate planning attorneys use certain documents (such as a last will and testament, a living trust, a financial power of attorney, a healthcare power of attorney, and a living will) to memorialize your plans for what happens to that which matters the most when your night has come. However, while most discussions about estate planning focus on what to include, little ink is spilled discussing what not to include in estate planning documents.
Including the wrong information in your estate planning documents can have serious consequences, from increased vulnerability to identity theft to potential legal liability. In this blog post, we’ll review what not to include in estate planning documents, with a focus on practical advice for local families and business owners.
Certain estate planning documents, especially wills, can become part of the public record through probate proceedings when a person passes away. In Ohio, probate records are public and accessible through each county’s probate court. For example, in Cuyahoga County, the probate court makes many filings publicly available through its online docket. That means any sensitive information included in those documents can potentially be accessed by identity thieves, distant relatives, creditors, and even strangers.
Avoiding common mistakes in your estate plan helps ensure your personal data—and your legacy—remain protected.
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 Social Security numbers are not necessary to identify each individual beneficiary. While it may seem logical to identify beneficiaries by their Social Security Numbers for clarity, doing so exposes them to potential identity theft.
Consider what happens to your will. As your will gets submitted to the probate court, it becomes a matter of public record in Ohio. Once your will becomes a matter of public record, anyone can access the document. This means that, if you include Social Security numbers, they can be exposed to the public and are therefore subject to potential identity theft. This is particularly important given that identity theft continues to be a significant risk. The Federal Trade Commission received 27,766 total identity theft reports in Ohio in 2024 alone. In addition to exposing yourself and your loved ones to potential identity theft, Social Security numbers can be used to target people for fraud. The Federal Trade Commission estimated that Americans lost a record-breaking $10 billion to fraud in 2023.
It is important to note, however, you may need to provide your family members’ Social Security numbers when you designate them as beneficiaries of your retirement or other accounts. The good news is that those forms, barring litigation, do not become part of the public record. Therefore, providing Social Security numbers on those forms does not create the same risk, as such forms are not as vulnerable to identity thieves.
Use full legal names, including middle initials, and possibly dates of birth for identification. If more precise identifiers are necessary, store sensitive details (like Social Security numbers) in a secure place—such as a private memorandum or secure digital vault—and reference that document in your estate plan.
In a similar vein, account numbers should be excluded from any estate planning documents that may become part of the public record (such as your will). These numbers can be used to gain access to your accounts and to take money without your consent. For example, the Federal Trade Commission received 47,336 reports of fraud by bank transfer or payment in 2024.
Similarly, you should also be careful regarding who you nominate to certain roles in your estate plan, especially in light of the possibility of incapacity. Depending on the role and the power granted to that person, some of those individuals may have authority to access your accounts and to take out money as they see fit. It is therefore important that you trust these individuals to carry out your wishes rather than taking the money for their own purposes.
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. 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.
Maintain a separate, confidential document (sometimes called a “letter of instruction” or “estate planning inventory”) that includes detailed account information. Store this document in a secure location such as:
Let your executor or trustee know where to find this document, and update it regularly.
You also should be cautious about making account numbers readily available to family members unless you have sufficient trust to designate 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.
Many people have difficult family relationships. While it may be tempting to use your will in order to settle old family disputes or get a final word in against a particular family member, this is not advised. As mentioned above, your will becomes a matter of public record when it is filed with the probate court. This means that anyone can access your will and read its contents. Therefore, if you make a nasty statement which impacts a beneficiary’s reputation, your estate may be subject to a lawsuit if the beneficiary can prove what you stated is not true.
On the other hand, it is important to acknowledge any beneficiaries you have specifically disinherited from your will in order to lessen the chance of a successful contest of your will. Again, such an acknowledgment should not include any sort of disparaging remarks just simply that you acknowledge the beneficiary and that they take nothing from your estate.
It is always important to keep in mind that your will is one of the last opportunities you will have to communicate with your loved ones and therefore you should focus on distributing your assets to the people you love rather than making remarks to those you dislike.
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., 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.
Keep your language neutral. If you wish to disinherit someone, simply state that you have intentionally chosen not to provide for them. For example:
“I have intentionally omitted [Name] from this Will, and it is my express intention that they shall receive nothing from my estate.”
Estate planning is more than just filling out forms—it’s about protecting your legacy and your loved ones. Knowing what not to include in estate planning documents can help you create a plan that’s not only sound, but also secure.
At Rhodium Law, we help individuals and families throughout Ohio create estate plans that are tailored to their unique needs and free from unnecessary risks. Our team will guide you in understanding what to include, and what not to include. Call us today at (216) 699-8145, or visit our Scheduling Page to book a complimentary initial consultation with our team.
