Avoid Haunting Your Loved Ones With Your Will: Don’t Rule From the Grave

Estate planning is an essential step in protecting your loved ones. In your will, you can leave gifts and bequests to family and friends in hopes that they will enrich and improve their circumstances. You may even have a clear vision of how they should spend their inheritance or live their lives. However, resist the temptation to add strings to these gifts. When you leave stipulations in a will tied to an inheritance, it is known as “ruling from the grave.”  These conditional gifts may have unintended consequences, or they may be unenforceable due to public policy. 

What Is a Conditional Gift? 

A conditional gift is a gift that is contingent upon an action, such as “I will give you money if you do or don’t do something.” 

For example, you may have a strong desire that your children complete college before they inherit. But what qualifies as a college? A two-year college? A four-year degree? What if your child has incredible talent as a chef and wants to attend culinary school? Does that count?  

Additionally, a court may not enforce specific provisions you include. For example, you probably couldn’t get away with leaving money to your beneficiary only if they marry a particular person or vote a certain way. 

That is not to say you can't direct when your children can inherit. For example, you may want your child to only come into money once they reach the age of 25. That may be a reasonable provision where your trustee can manage your child's inheritance until the child reaches the designated age.

But what can you do if you have strong feelings about how your beneficiaries should conduct themselves? There are two ways: a letter of instruction or a trust.  

What Is a Letter of Instruction? 

A letter of instruction is a document with your wishes and personal sentiments. This letter is not a legal document and can’t be enforced in court, but it is a powerful way to communicate with your family and friends. For example, you may leave instructions that if the real estate market is good, you should sell the cabin and pay off the mortgage of the primary house. That way, the beneficiary is not bound to do something but understands how you think it is best to handle their gifts. 

In a letter of instruction, you can include things such as directions on where to find your assets, your password lists, keys to digital assets and cryptocurrencies, and information on where to find important papers such as deeds and life insurance policies. You can also give details about your funeral wishes and who to contact upon your death. In a letter of instruction, you can express your desires for your beneficiaries without tying up their gifts due to a technicality. For example, you can tell them you would like them to attend Catholic schools.  However, what if the Catholic school near them isn't good? Your beneficiaries know your wishes, but they can choose for themselves what is most practical at the time. 

What Is a Trust? 

A trust is a legal document that appoints a person (a “trustee”) to manage and disburse money placed in the trust to your beneficiaries according to your instructions. Suppose you have a child with a history of drug addiction. In that case, you may want to set up a living trust. You can place property in the trust during your lifetime, and when you die, your remaining property can go to the trust through a pour-over will. Once you pass, your trustee supervises the money, invests it, and disburses it following your instructions. The trustee can, at their discretion, only give it directly to the child if they are free from substance abuse. However, the trustee can use those funds to pay for rehabilitation and substance abuse recovery programs. Your gifts do have strings attached, but there is someone to make decisions about what is best for your beneficiary based on their current circumstances. 

What Not To Put In Your Will  

In addition to conditional gifts, there are other things that you should refrain from including in your last will and testament.  

Funeral Instructions.  Do not leave instructions about your funeral in your will. Your wishes for a funeral, memorial, burial, or cremation should be written down separately and left with loved ones or prearranged with a funeral home. Many times, a will is not even read until after you are buried, so your family won’t discover your detailed plans. 

Personal Sentiments. When a will goes into probate, it becomes a public record. As explained above,personal statements belong in personal letters or letters of instructions. You don’t want to air out your dirty laundry (or skeletons in your closet) in your will. 

Passwords or Sensitive Information. Again, your will becomes a public record, so you should avoid including confidential or personal information such as passwords, access to online accounts, and social security numbers. 

Gifts to Pets. The law considers pets to be property, and therefore, they cannot inherit anything. If you want to provide for your pets in your will, you can name a caregiver to inherit your pet and give money to the caregiver for the pet’s care. Another way is to create a pet trust for the care of your furry friend. 

Find Legal Solutions 

If you have specific wishes or a potential beneficiary with special needs or have substance abuse issues, you may want to talk to an estate planning attorney or lawyer with experience in trusts and estates for legal advice. 

However, if you can simply leave your personal wishes in a letter of instruction, you can make your own will using online estate planning documents. 

Related Resources 

• Simple Guide To Writing a Will (FindLaw Forms & Services Estate Planning Resources) 
• What Not To Include When Making a Will (FindLaw Forms & Services Estate Planning Resources) 
• How To Leave Money to Beneficiaries Who Can't Manage It (FindLaw Law and Daily Life)