It is a common misconception that a person may write whatever they wish in their will and have those wishes honored under the law following their death. However, this is generally not the case under state laws.
For instance, there are some provisions in wills that must be struck down because they violate the law of the jurisdiction in which the will is read. In other words, there are legal limitations on wills, and these will be observed in spite of what is written in your will.
A lawyer who has experienced working with wills and estates can provide legal advice as to the best way to have your instructions as to who receives your property observed.
What Types of Property Cannot be Willed?
One example of such a limitation is that there are some types of property that cannot be willed. These types of property include:
- Proceeds of a life insurance policy for which you have named a beneficiary. The beneficiary is entitled to the proceeds, and a will cannot change that;
- Money in other types of accounts for which you have named a beneficiary. These types of accounts might include pensions and IRAs. The beneficiary will receive the funds;
- Money kept in a bank account that is classified as payable on death;
- Property that is held in trust; and
- Property that is not solely yours, but is held jointly with one or more other owners. The surviving owners receive your part of the property upon your death.
Laws concerning wills vary by state. Additionally, the laws regarding wills, estates and trusts are complex and interrelated with tax law. Depending upon your estate, and your wishes for its distribution, you may wish to consult an attorney to have the best chance of having your instructions followed.
What are Some other Limitations of Wills?
In addition to the restrictions on what types of property may be passed on by a will, there are other types of limitations. There are some other items that cannot be taken care of by writing them into a will. These include:
- A will generally cannot be used to avoid probate. Probate is the process by which a will goes through court so a judge can rule upon its disposition. This can’t be bypassed, even if you write into you will that you wish for it to avoid probate court;
- A will cannot be used to avoid paying taxes. You can write instructions in your will that you don’t want to be taxed, but this will not be complied with. Instead, your estate must comply with federal and local tax laws. An attorney can help you make decisions, however, as to how to reduce the tax burden;
- A will is not a good place to list plans for your funeral. Since a will has to pass through probate, it is subject to that process, which may take some time. Will readings usually don’t take place until some time after death, so they are likely to occur after the funeral;
- Conditional gifts: Any time you state a gift in your will, but make it conditional on the recipient complying with your instructions in order to receive it, you may jeopardize the gift being carried out. This may depend on the condition. Some are less likely to be observed than others;
- Instructions requiring someone to behave illegally will not be followed; and
- Pet cannot receive property via a will because pets cannot own property. However, other measures may be taken to have your pet cared for after your death, including having a trust established for the pet (depending upon your jurisdiction).
Creating a trust to hold and distribute your property can help avoid many of the pitfalls of trying to will your property. Estate planning with a qualified attorney can help ensure that your wishes are followed if you are concerned about it.
Are There any Other Issues that can Affect how I Distribute My Property?
Most jurisdictions entitle a person’s spouse to a certain portion of the deceased’s estate. How much the surviving spouse is entitled to will depend upon the jurisdiction. However, if you try to cut a spouse out of a will, they will likely be able to go against your wishes due to laws that ensure the spouse receives some property.
Do I Need to Hire a Lawyer for Help With a Will?
As you can see, writing a will is more than a matter of simply writing down exactly how you wish your property to be distributed after your death. There are a number of legal limitations that may be imposed on any instructions you leave.
A qualified will lawyer can help you create the best situation possible for ensuring that your wishes are observed. Your lawyer can help not only with the writing of the will, but they can also explain any possible limitations and what you might be able to do about them. This type of lawyer can also help if a will needs to be changed or contested.