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What You Can’t Do With a Will

Posted by Nina Whitehurst | Jun 09, 2021 | 0 Comments

While a will is one of the most important estate planning documents you can have, there are things that it won't cover. A will is just one part of a comprehensive estate plan. 

A will is a legally-binding statement directing who will receive your property at your death. It is also the way you appoint a legal representative to carry out your bequests and that you name a guardian for your children. Without a will, your estate is distributed according to state law, rather than your wishes. Property distributed via a will goes through probate, which is the formal process through which a court determines how to distribute your property. 

Although a will is one main way to transfer property on death, it does not cover all property. The following are examples of property you can't distribute through a will: 

  • Some jointly held property. Property that is co-owned with another person who has a right of survivorship is not distributed through your will. Examples are property held as tenants by the entirety, joint tenants with right of survivorship, or community property with right of survivorship.  Co-owners with survivorship rights each have an equal ownership interest in the property. If one co-owner tenant dies, his or her interest immediately ceases to exist and the other joint tenant owns the entire property. 
  • Property in trust. If you place property into a trust, the property passes to the beneficiaries of the trust, not according to your will. 
  • Pay on death accounts. With a pay on death account, the account owner names a beneficiary (or beneficiaries) to whom the account assets pass to automatically when the owner dies.  
  • Life insurance. Life insurance passes to the beneficiary you name in the life insurance policy and isn't affected by your will. 
  • Retirement plan. Similar to life insurance, money in a retirement account (e.g., an IRA or 401(k)) passes to the named beneficiary. Under federal law, a surviving spouse is usually the automatic beneficiary of a 401(k), although there are some exceptions. With an IRA, you can name your preferred beneficiary. 
  • Investments in transfer on death accounts. Some stocks and bonds are held in accounts that transfer on death to a named beneficiary. These accounts will bypass probate and go directly to the beneficiary. 

In addition to not being able to transfer certain types of property with a will, there are other things for which you cannot use a will. The following are examples of items that should not be included in a will: 

  • Funeral instructions. A will is not the best place to put your funeral instructions. Wills are often not found until days or weeks after death. It is better to leave a separate letter of instruction that is located in an easily accessible location. 
  • A provision for a child with special needs. If you are leaving money to a child with special needs, a will is not the best instrument. Receiving an inheritance directly can make the child ineligible for benefits. It is usually better to set up a special needs trust to provide for the child. 
  • A provision for a pet. You cannot leave money directly to a pet in a will. You can name a caregiver for a pet and provide money to them to care for the pet, but the caregiver is not legally obligated to use the money on the pet. A pet trust is the most secure way to provide for a pet. 
  • Certain conditions on gifts. You may be tempted to make gifts conditional on the recipient's behavior or actions. However, there are certain conditions that are not allowed. The condition cannot be illegal, and the gift cannot be contingent on the marriage, divorce, or change of religion of the heir.

A will is not the only component of an estate plan. To make sure your estate plan covers all your needs, talk to your attorney. 

 

About the Author

Nina Whitehurst

Attorney at Law Nina has been practicing law for over 30 years in the areas of estate planning, real estate and business law She is currently licensed in Alaska, Arizona, California, Colorado, Oregon and Tennessee. Her Martindale-Hubbell attorney rating is the highest achievable: 5 stars in peer...

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