What Not to Put in a Will

What Not to Put in a Will

Writing a will feels like you should include everything you own, right? Actually, that's not the case. Some things don't belong in your will at all. Others work better through different methods. Let me walk you through what to keep out of your will and why. Understanding these distinctions can save your family significant time, money, and stress during an already difficult period.

Assets with Designated Beneficiaries

Your will can't override beneficiary designations. These assets transfer automatically to the people you've named:

• Retirement Accounts: Your 401(k), IRA, and pension plans already have beneficiary forms. The will can't change these designations. Make sure your beneficiary forms are current instead. Review these designations whenever you experience major life changes like marriage, divorce, or the birth of children.
• Life Insurance Policies: These pay directly to your named beneficiaries. Your will has no say in this process. Most insurance companies require updated beneficiary forms to be filed with them directly, not just mentioned in estate planning documents.
• Annuities: Similar to life insurance, these contracts have their own beneficiary rules. The insurance company that issued the annuity controls the payout process.

For example, if your ex-spouse is still listed on your 401(k) but your will says everything goes to your current spouse, guess who gets the retirement money? Your ex-spouse. This scenario happens more often than you'd expect, creating family conflicts that could have been easily avoided.

Jointly Owned Property

Property you own with others has special rules. Your will can't control what happens to these assets:

• Joint Tenancy with Rights of Survivorship: When you die, your share automatically goes to the surviving owner. This includes most jointly owned homes between spouses. The transfer happens immediately, often before anyone even reads your will.
• Joint Bank Accounts: The surviving account holder gets full access immediately. No probate needed. However, be aware that adding someone as a joint owner gives them full access while you're still alive too.
• Jointly Owned Vehicles: Cars titled with "or" between names transfer automatically to the surviving owner. Titles with "and" between names work differently and may require additional steps.

Assets in Trust

If you've moved assets into a trust, your will doesn't control them anymore. The trust document does. This is actually a good thing - trusts often work better than wills for many assets. They avoid probate and provide more control over distributions. A revocable trust can be particularly useful for managing these assets during your lifetime while providing clear instructions for after your death. Many people combine trusts with a pour-over will to catch any assets that weren't properly transferred to the trust during their lifetime.

Things That Don't Belong in Any Legal Document

Some requests simply don't work in a will:

• Funeral Instructions: Wills are often read after the funeral. Put these wishes in a separate document your family can access immediately. Consider discussing your preferences with family members directly or leaving instructions with your funeral director.
• Digital Passwords: These change frequently and shouldn't be in a legal document. Use a password manager with emergency access features instead. Some services allow you to designate digital executors who can access your accounts when needed.
• Illegal Requests: You can't ask someone to do something illegal through your will. Courts will ignore these provisions entirely.
• Conditions That Violate Public Policy: Requirements that encourage divorce, illegal activity, or discrimination won't be enforced. Courts have broad discretion to void provisions they consider against public interest.

Business Interests That Need Special Handling

Business ownership gets complicated in wills. Partnership agreements often restrict how ownership transfers. Your business partners might have the right to buy out your share before it goes to your heirs. Check your business agreements first - you might need a separate succession plan. Some businesses have mandatory buy-sell agreements that automatically trigger upon an owner's death, regardless of what your will says. Professional practices, in particular, may have licensing requirements that prevent non-professionals from inheriting ownership interests.

Assets in Other States

Real estate in other states creates probate headaches. Your will might need to go through probate in multiple states, a process called ancillary probate. Consider putting out-of-state property in a trust instead. This avoids multi-state probate entirely and can save thousands in legal fees. Some states have particularly complex probate processes that can tie up assets for months or even years.

Medical Directives and Healthcare Decisions

Healthcare decisions need immediate attention in emergency situations. A living will or advance healthcare directive works better than including medical wishes in your regular will. These documents are designed to be accessible to medical professionals quickly. Your family needs to be able to present these directives to hospitals and doctors without waiting for probate court proceedings to begin.

Better Alternatives to Consider

Instead of putting everything in your will, consider these options:

• Beneficiary Designations: Update these regularly on all accounts that allow them. Bank accounts, investment accounts, and retirement plans all offer this option. Many banks now offer payable-on-death (POD) and transfer-on-death (TOD) designations for regular checking and savings accounts.
• Transfer-on-Death Deeds: Many states allow these for real estate. The property transfers automatically without probate. You maintain full control during your lifetime while ensuring smooth transfer afterward.
• Living Trusts: These handle most assets more efficiently than wills. They avoid probate and provide more control over distributions. Unlike wills, trust documents remain private and don't become part of public court records.
• Joint Ownership: Simple for spouses, but be careful with other relationships. Joint owners get full control immediately, which can create problems if the relationship deteriorates.

What Should Stay in Your Will

Don't worry - your will still serves important purposes. Use it for:

• Personal property without titles or beneficiaries
• Naming guardians for minor children
• Appointing an executor to handle your affairs
• Backup instructions if other methods fail
• Assets you own individually without beneficiary options
• Specific bequests of sentimental items like jewelry, artwork, or family heirlooms

Common Mistakes to Avoid

Many people make these errors when drafting their wills. Trying to control assets through your will that already have other legal mechanisms in place. Forgetting to update beneficiary designations after major life changes. Assuming that writing something in your will automatically makes it legally binding - some provisions simply cannot be enforced. Organizing your information properly can help prevent these common pitfalls and ensure your estate plan works as intended.

Regular Review is Key

Estate planning isn't a one-time task. Review everything annually. Life changes constantly - marriage, divorce, births, deaths, and new assets all affect your plan. Make sure your beneficiary designations match your current wishes. Update joint ownership when relationships change. Consider reviewing your plan after any significant life event, not just once per year. What seemed like a good idea five years ago might not make sense for your current situation.

Working with Professionals

Complex estates benefit from professional guidance. An experienced attorney can help you understand the differences between wills and trusts and determine which tools work best for your specific situation. They can also help you coordinate between different estate planning documents to ensure everything works together smoothly. Don't try to handle complicated business interests, multi-state property, or complex family situations without professional help.

Conclusion

Your will is just one part of estate planning. Many assets work better through other methods. Understanding what doesn't belong in your will helps you create a more effective overall plan. Focus your will on what it does best while using other tools for everything else. This approach gives your family the smoothest possible experience during a difficult time. Remember that the goal isn't just to distribute your assets - it's to make the process as easy as possible for the people you care about most.

Brian Liu, Esq. Brian Liu revolutionized the legal landscape as the Founder and former CEO of LegalZoom. At ElmTree Law, Brian continues his mission to democratize the law and make estate planning simpler. Learn More

Disclaimer: The content on this blog is for general informational purposes only and does not constitute legal advice. Reading this material does not create an attorney-client relationship with ElmTree Law. For advice regarding your specific situation, please consult a qualified attorney.