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5 Things Not to Include in Your Will

By Andrew Chow, Esq. on February 29, 2012 6:04 AM

This post was updated on March 25, 2022

Your "last will and testament" can include complicated instructions for what happens to your property after you die. But some language in your will — while legal in appearance — may not be legally enforceable.

Rules and practicalities may render parts of your carefully crafted will a waste of time and effort. Here are some items experts say you should not include in your will:

1. Division of Some Types of Property

Property rules can often trump what's written in your will. For example, life insurance proceeds and payable-upon-death bank accounts automatically go to your named beneficiary, and a will cannot change that.

If you change your mind about beneficiaries, you should change the name on the form where you named the original beneficiary. Property held in joint tenancy also passes automatically to your joint tenant, regardless of what you say in your will.

2. Funeral Instructions

You may include funeral instructions in your will, but it also may not make sense. That's because settling your estate may take time, whereas funerals typically occur within a few days of death. It is a better idea to create a separate document with funeral instructions to make sure your relatives know what you want.

3. Conditional Gifts

You may wish to give a gift or asset to a beneficiary on a conditional basis, meaning that the beneficiary fulfills a specific requirement to receive the gift. For instance, you might pass the family cottage on to children on the condition that they not use it as a rental property.

This does not mean that you can place any restrictions on gifts, however. If the condition is illegal or against public policy, it is unlikely to be enforced. For example, courts will probably not enforce bequests conditioned upon a recipient marrying a specific person, getting divorced, or changing their religion. On the other hand, conditions that restrict receipt of the gift until the beneficiary reaches a certain age or attains a certain educational level are likely to be upheld.

A better option for giving conditional gifts is the creation of a living trust, which allows you to name a trustee and create the terms under which the beneficiary receives the gift.

4. Arranging Care for Disabled Relatives

While you can arrange for another person's care in your will, experts say a will is not the best way to do it. That is because caring for a disabled relative is a much more complex undertaking than a will accounts for, which mainly handles the distribution of property. Certain types of trusts, such as special-needs trusts, are more comprehensive and might be a better way to go.

5. Bequests to Pets

Some states allow for this, but in other states, you may be barking up the wrong tree. Animals cannot own property, so you can't leave them anything in your will. But in more than 40 states, you can set up a trust to specify the terms of your pet's housing and care. You might want to create a trust for your beloved pet, but a simpler option may be appointing a trusted caregiver using a document like a will using FindLaw Forms & Services.

These are just a few general guidelines to get you started on making out your will. It's a task that you can do on your own with the aid of proper tools and information. But if you're not certain, it may be wise to consult an estate-planning lawyer to figure out what you should, and should not, include in your will.

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