May 10, 2021
What You Can’t Put In Your Will
It’s morbid to think about what happens to your loved ones and your possessions after you die. It’s a sad fact of life that we do have to prepare for our end. When anyone goes, you want to make sure that everything is in order for those you leave behind. You can make life easier or simpler for them in so many ways by leaving a well-crafted will.
Believe it or not, there are many things that people have tried to put into their will that is not meant for it. Technically speaking, a will is, “a legal document that expresses a person’s wishes for how their property is to be distributed after their death, as to which person is to manage the property until its final distribution.” This means there are a lot of non-property items you can’t and some you better not mention in your will.
Something to Remember
The word probate will be used regularly throughout. For those that don’t know, it’s the legal term for the process of reviewing the validity and authenticity of a will. Either the executor of the will who you can hire and pay for in advance will perform the probate, or a court-appointed administrator will.
Probate is where if something in your will is invalid or impossible to perform, it can be legally disregarded or changed within reason. We’ll go over this more in detail with each example.
#1. You Can’t Leave Someone Your Pension Benefits or Life Insurance
Both of these are examples of something you settle through a beneficiary of some kind. These are things you cannot put in your will. If you do, they will be disregarded as invalid points, and will likely delay pension/life insurance payments from getting to whom they were originally meant for.
A pension is specifically through the administrator of the retirement account. You would contact them about potentially changing who receives your pension, or ensuring that someone even can receive your pension after you’ve passed. Your will cannot legally affect this. If you expect someone you love to need money or benefits from your pension, don’t put it in your will–this will keep them from having it as soon as possible.
It is a similar case with your life insurance policy, if you have one. With insurance, your beneficiary should already be named and decided on. You cannot use your will to change the beneficiary posthumously. Wills have no authority to supersede what has already been signed in your life insurance. If you want to change it, you must contact your insurance company.
#2. You Can’t (Really) Add Conditions to Receive Possessions or Estate
It’s best to create and leave a trust if you wish to place stipulations or conditions on those receiving your possessions or estate. They can use the money in the trust to make sure an executor is making sure the conditions are met. Trusts are set up to work this way. In a will, unless you set up an executor, the court will far more often than not remove your condition or ignore it during probation because it cannot uphold it.
For examples of when a court will ignore your condition:
- You leave a car for your children or family member(s) on the condition that it’s only used for work or school.
- You leave your home or a piece of land to your child or cousin on the condition that they be married by a certain time.
- You leave money for your niece or nephew on the condition that they use it for college.
What happens is that the court will make an informed decision, sometimes ignoring the condition to give your possessions and/or estate to the intended person without the conditions being met.
In the examples above, the court cannot ensure that a possession is used as you intended as an executor of a trust can. The court may also find it unethical and may allow someone to challenge the will in court.
Even the conditions of waiting until someone is 18 years or older is not something you can do in a will. If you want to add any condition and ensure it is followed, it must be through a trust. With a trust, a third party with an appointed trustee and/or executor, will judge whether the conditions have been met. If someone challenges a trust, the court is more likely to accept the conditions because the trust has someone to be the executor of the conditions, but conditions that have the executor or recipient break the law would still not be allowed.
#3. You Cannot Give Away Co-owned Property or Shared Assets
If you have a piece of property or business that is partially or co-owned by someone else, they will receive complete control over it upon your death. You cannot legally give these things to anyone else in your will. Even naming your co-owner or spouse in your will only serves to delay them receiving during your will’s probation.
If you live in a home you own with someone else, like a spouse or life partner, they will receive whole ownership. The same goes for any joint accounts you may have with your spouse. Your spouse is supposed to automatically receive them upon your death.
With a business that you own privately or through stocks, you cannot give them to someone else in your will. Your business partner or partners who co-own a business with you will have assets and percentages split between them. If you have stocks that you wish to pass on, you would have to speak to your stockbroker about setting up a beneficiary or a joint owner. In both instances, if you mention the stocks, they cannot be passed to the beneficiary until the probation is over.
#4. You Cannot Dictate Funeral Arrangements or Give Money for It
It’s common for your will’s probation to finish after your funeral has already happened. For this reason, any conditions or support for your funeral will become void and ignored. If you wish to help your family and friends set up and fund your funeral, it would be better to set up a trust, or pre-plan with your preferred funeral services.
It is possible for your will’s probation to be finished before your funeral, but this is still not legally binding. All that you can decide is who is the appointed decision-maker for your funeral, who should be named before the probation period is over.
#5. You Can’t Leave Anything to Your Pets, Sorry
It is with heartfelt regret that we must tell you that your pet cannot receive property in your will. Pets are considered property, and can only be referred to as such in your will. You cannot give them any of their toys, beds, food, or medicine after you pass.
You can give them to a trustee who will take care of them if you do not have a spouse or children who can claim them. You can also give that trustee all of your pet’s things and money to care for them. It would be suggested to do this through a trust, with an executor who can confirm that your pet is being taken care of if another family member or friend cannot. But, you can specify who you’re leaving your pet to.
This has been mentioned before, but attempting to add any condition that would necessitate someone committing an illegal act, will not only void the topic of that condition, but possibly the will itself.
For a lot of these things that you can’t put in binding writing in your will, you can at least say with a letter of intent. This is a letter that can declare your intentions for sections of your will and funeral arrangements. This can be linked with your will or trust.
This is where you can specify that you’d prefer that the recipient of your car only use it to travel to school and work. You can specify that the money you are leaving is meant for college. You still cannot necessitate anything illegal. This is better done before your death, where you can legally bind the recipients of your will to this letter’s conditions before you pass. Afterward, there’s no way for you to confirm it.
Need Help with Your Will? Mazzoni Karam Petorak & Valvano Can Help
Building a will, a trust, or maybe even both, can be a strenuous and taxing process. It can be an uncomfortable experience for a lot of people for understandable reasons. You don’t have to go through it alone.
Mazzoni Karam Petorak & Valvano is a firm of experienced estate planning attorneys, based in Scranton, Pennsylvania. If you are in need of a will, a trust, or both, we can help you create one. If you are in need of any assistance in learning what you can and can’t add to your will and/or trust, contact us today.