While it is very common to use a will to hand property down to another person after you have died, there are certain types of property that legally cannot be included in a will: 

  • Any property that you co-own with someone else in joint tenancy.  Married couples usually own their homes in joint tenancy, which means when one spouse dies, the other spouse automatically owns the entire house.  It is necessary to change the deed on the house to reflect the death of one of the joint tenants. 
  • Funds from a bank account that are supposed to be payable upon death.  You can change beneficiaries by filling out a form at the bank, but not through your will.
  • Property put into a living trust.
  • Funds from any kind of retirement plan (IRA, 401(k), etc.).  If you want to change the name of the person due to receive the money, contact the administrator of the retirement plan account.
  • Funds for a life insurance policy after already having named a beneficiary.
  • Any investment securities (stocks, bonds, etc.) that are to be transferred to a beneficiary upon your death.  If you wish to change the beneficiary, you will need to contact your brokerage firm.
  • Community Property laws affect what you can and cannot leave in a will.  Your spouse is entitled to a share of the community property.

Are There Any Other Items I Cannot Include in My Will?

Keep in mind that the purpose of the will is simply to say what things you wish to leave to which beneficiaries.  Anything going beyond that point is not legally enforceable in a will: 

  • Funeral instructions and final arrangements:  keep in mind that most of your relatives will not know where to find your will, or may not even know that you have a will; so leave a separate document that explains your final wishes and let the executor of your estate know about it and where it is stored.
  • Providing care for a beneficiary who has special needs:  this should be done in a separate trust.
  • Putting conditions on items you are putting up for inheritance:  you cannot condition a beneficiary¿s receipt of a gift on her marital status or religion, though you may be able to put less drastic conditions on a gift such as giving the item to a beneficiary as long as they do not drink or smoke. 
  • Providing funds for an illegal purpose:  obviously if it would be illegal to provide funds for a certain purpose while you are alive, it would not be any more legal once you have died.

Do I Need an Attorney to Help Draft My Will?

The legal formalities and tax implications of a will can be very complex and confusing.  If you would like assistance in making a will you should contact an attorney who has experience in estate planning.  Your estate planning attorney will be able to listen to your goals for your will, and help you develop a will (or any trusts if need be) to meet those goals.