Limitations of Wills

It is a common misconception that people may write whatever they wish in their will and have those wishes honored following their death. However, this is not the case. There are limitations on what you can do in a will. For instance, some provisions in wills must be struck down because they violate the law of the jurisdiction in which the will is read. In other words, there are legal limitations on wills, which will be observed despite what is written in your will.

Laws concerning wills vary by state. Additionally, the laws regarding wills, estates, and trusts are complex and interrelated with tax law. Depending upon your estate and your wishes for its distribution, you may wish to consult an estate attorney for the best chance of following your instructions.

What Types of Property Cannot be Willed?

One example of such limitations is that some property types cannot be willed. These types of property include:

• Proceeds of a life insurance policy for which you have named a beneficiary. The beneficiary is entitled to the proceeds, and a will cannot change that
• Money in other types of accounts for which you have named a beneficiary. These types of accounts might include pensions and IRAs. The beneficiary will receive the funds, not the person(s) named in your will
• Property that is held in trust. A trust is an estate planning tool that directs a person or people, called the trustee(s), to hold the trustor’s property for the benefit of others, called the beneficiaries
• Money kept in a bank account that is classified as payable on death (these allow the property to be passed to beneficiaries upon an individual’s death without the property passing through the probate process. They can accomplish the same transfer of funds as a trust but without the cost of setting up a trust
• Property that is not solely yours but is held jointly with one or more other owners. The surviving owners will receive your part of the property upon your death

What are Some other Limitations of Wills?

In addition to the restrictions on what types of property may be passed on by a will, there are other limitations. Some other items cannot be taken care of by writing them into a will. These include:

• A will generally cannot be used to avoid probate. Probate is the process by which a will goes through court so a judge can rule upon its validity and disposition. This can’t be bypassed, even if you write into your will that you wish to avoid probate court
• A will cannot be used to avoid paying taxes. You can write instructions in your will that you don’t want to be taxed, but this will not be complied with. Instead, your estate must comply with federal and local tax laws. An attorney can help you make decisions, however, as to how to reduce the tax burden
• A will is not a good place to list plans for your funeral. The reading of the will usually doesn’t take place until some time after death, so it is likely to occur after the funeral, too late for your wishes to be observed. Also, since many wills have to pass through probate, they are subject to that process, which may take months or even a year.
• Conditional gifts: This provision states that money or property is to be distributed from the estate only when and if a specific event occurs, such as graduating from college. Any time you state a gift in your will but make it conditional on the recipient complying with your instructions to receive it, you jeopardize the gift being carried out.
  • Some conditions are less likely to be observed than others. This applies especially to “condition subsequent” gifts. A condition subsequent applies to gifts given without condition but revoked if a specific event happens.
  • An example would be if a testator leaves land to a specific beneficiary because the beneficiary may never build a garage on the property. Such conditions are typically more difficult to enforce because they are completely open-ended. The condition that results in the revocation of the gift may not happen until decades after the gift has been made.
• Instructions requiring someone to behave illegally will not be followed
• Gifts made only if the beneficiary gets married to, or divorced from a specific person will not be followed
• Gifts made on the condition that the beneficiary changes their religion will not be enforced either
• A pet cannot receive property via a will because pets cannot own property. However, other measures may be taken to have your pet cared for after your death, including having a trust established for the pet (depending upon your jurisdiction)

Creating a trust to hold and distribute all or some of your property can help avoid many pitfalls of trying to will your property. As mentioned, a trust is a way to transfer property after death. There are many different kinds of trusts, both living and testamentary. What they all do is transfer property or money into the trust, and a person you designate (the “trustee”) will distribute the proceeds to your beneficiaries, following your instructions. Trusts can be created for various reasons, such as a financial benefit for the creator, financial support for surviving spouses, or charitable purposes. An estate planning attorney can help you set up a trust.

Are There Any Other Issues that Can Affect How I Distribute My Property?

If you die without a will, most jurisdictions entitle a person’s spouse to a certain portion of the deceased’s estate (often all of it. How much the surviving spouse is entitled to depend upon the jurisdiction). However, if you try to cut your spouse out of a will, they can challenge it. Valid legal reasons to contest a will include:

• The deceased person was not of sound mind when they made the will
• Someone exerted undue influence over the deceased person, causing a gift meant for the spouse to go to the influencer
• The will was not properly made – for example, there were not enough witnesses, or one or more of the witnesses was inappropriate (e.g., people who will inherit something in the will cannot be witnesses)
• The will was unclear
• There is a later valid will

Do I Need to Hire a Lawyer for Help With a Will?

As you can see, writing a will is more than simply writing down exactly how you wish your property to be distributed after your death. Several legal limitations may be imposed on any instructions you leave.

A qualified will lawyer can help you create the best situation possible to ensure that your wishes are observed. Your lawyer can help not only with the writing of the will but they can also explain any possible limitations and what you might be able to do about them. A lawyer can also help if a will needs to be changed or if it is contested.