Limitations of Wills
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What Are Some Limitations of Wills?
Many people have the idea that they can include whatever instructions they want in a will. While wills are a useful way to ensure that your property is distributed the way you want it to be, they do have many limitations. The limitations of wills may involve the type of property that you can leave upon your death, as well as certain instructions that can’t be performed through a will.
For example, you can’t really use a will to transfer certain types of property such as:
- Property that you hold as a joint tenant with one or more persons. Upon your death, your share will belong to the surviving co-tenants.
- Property that has already been transferred into a living trust
- Money held in a “payable on death” bank account. You’d likely have to fill out a separate form with the bank
- Certain types of benefits, like some pension plans, IRA’s and securities held in transfer-on-death accounts. There will probably be a separate mechanism for distributing these, which are provided by the company that renders the benefits to you
Thus, you would want to ensure that your will follows the various requirements in your state. There is also much overlap between the laws governing wills and the laws covering trusts.
What Are Some Other Limitations of Wills?
Besides property limitations, there are also certain instructions that simply can’t be carried out through a will. These include:
- Tax Instructions: A will can’t help you avoid taxes or tax debt. Some kinds of trusts, however, can help reduce tax consequences, so that may be a better option.
- Funeral Instructions: Wills are usually not enforced (and sometimes not even read or discovered) until well after the person has already passed away. Therefore a will is not the best place to state funeral instructions.
- Instructions Regarding Conditional Gifts: There are many legal limitations on the conditions that you place on gifts in your will. For example, you can’t place conditions on a gift if they have to do with the recipient’s change of religion, marriage, or divorce (i.e. you can’t state in your will, “Bob can receive my car if he divorces his wife.”
- Instructions involving Illegal Conduct: You can’t leave instructions in a will if they direct a person to perform conduct that is illegal.
- Instructions involving Pets: While you can include instructions for what to do with your pet after you pass away, pets can’t inherit property or money. If you’re concerned about the care of a pet after you pass away, it may be possible to set up a trust in some states.
Again, many of the limitations of wills can be overcome by setting up a trust instead of including questionable instructions in your will. Proper planning can help you avoid will contests in the future. Modifying your will may be necessary if you discover any inconsistencies in your will documents.
Do I Need to Hire a Lawyer for Help With a Will?
Drafting a will requires thorough planning as well as some knowledge of the laws in your area. If you need assistance with your will, you may wish to contact a lawyer for advice. Your lawyer can help draft your will and inform you of the many different limitations of wills. Also, an attorney can be of help if there is a dispute over the will of a loved one, or if a will needs to be modified.
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Last Modified: 10-08-2013 02:58 PM PDT
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