Many people create a will to convey in writing how they want their estate to be handled when they die. A properly executed will tells the court how to divide your assets and transfer them to your named heirs. A will can also include instructions to appoint a guardian for the care of minor children, to make gifts to charity, and to form trusts.
While what is required for a properly executed will varies by jurisdiction, some formalities and rules are consistent throughout the U.S. All jurisdictions require that you have the capacity to execute a will. A will must also be in writing and signed by you; the signing must be witnessed. Let’s go over some of the limitations of wills and what you can do instead.
Lesser-known limitations
There are some legal restrictions on what you leave and how you leave it. For example, in most states, you are forbidden from disinheriting your spouse. Your spouse can be disinherited only with their consent, which is usually given in a pre- or post-nuptial agreement. Further, in most states, a surviving spouse has the right to take a predetermined percentage of an estate if they are discontent with what you left them in your will.
In most states, you cannot disinherit minor children. If you wish to disinherit nondependent children, you should state so plainly to avoid potential legal challenges or confusion.
A will cannot be used to avoid probate or paying taxes. If you write instructions in your will that you don’t want your will to be probated or your estate taxed, the requests will be ignored because they cannot legally be honored. You could instead try to reduce your tax burden by creating a trust.
Where a Will Falls Short
A will cannot be used to transfer jointly held property with a right of survivorship or assets in a living trust.
A will cannot be used to redirect the payouts of life insurance policies or retirement, or pension plans. Those distributions go to the beneficiaries you have designated in those policies and plans. (If you wish to redirect those funds, name new beneficiaries.) Securities and, in certain jurisdictions, real estate or vehicles with transfer-on-death deeds similarly go to designated beneficiaries.
A will should not be used to make conditional gifts. Meaning, an heir should not be asked to comply with requests or instructions in order to inherit. Examples include prohibiting someone from inheriting land if they plan to build on it or not allowing someone to inherit if they change their religion or marry a specific person. Enforcing a directive becomes difficult when no one violates it until years after you make the bequest, and most jurisdictions refuse to uphold clauses that restrict a living person’s freedom of choice. You can, however, make certain conditional gifts by establishing a trust.
A will cannot instruct or request that someone behave illegally.
A will cannot leave gifts to pets. Pets cannot own property. You can provide for your pet by establishing a trust for their care.
Further considerations
You should outline provisions for heirs with special needs in a trust that provides for them without jeopardizing their eligibility for government aid programs.
Do not use your will to convey your funeral plans. Since people will not read your will until after you die, they will learn your wishes too late to follow them.
Because a will is not valid until after you die, it cannot manage your assets for you should you become incapacitated or otherwise unable to manage financial decisions.
A probate court will review your will after your death. It can take weeks or months for the process to be completed and verified, and distributions made to the named heirs. Probate also makes the contents of your will and estate part of the public record. If you’d prefer to have your assets distributed promptly and out of the public eye, you should create a trust. A properly funded trust will avoid probate. All assets that go through probate are subject to estate and inheritance taxes, and the assets are available to creditors. Trusts are taxed differently and are shielded from creditors.
A will can be contested. Unpaid creditors or other people who feel they have property rights or claims against your estate can contest your will. A will can also be contested if errors are found.
Once you understand its limitations and what it cannot address, a will can be a useful tool in estate planning. In most situations, a will and a trust can work together to protect your assets for your family. Get in touch with an estate planning attorney to discuss tailor-made solutions for your family.
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