Cona Elder Law


What You Can’t, or Shouldn’t, Do in Your Will

Wills aren't the place to handle certain kinds of property or issues.

Wills are wonderful, simple, inexpensive ways to address many people's estate planning needs. But they can't do it all. Here are some things you shouldn't expect to accomplish in your will.

Leave Certain Kinds of Property

You can't use your will to leave:

  • Property you hold in joint tenancy with someone else (or in "tenancy by the entirety" or "community property with right of survivorship" with your spouse). At your death, your share will automatically belong to the surviving co-owner. A will provision leaving your share would have no effect unless all co-owners died simultaneously.
  • Property you've transferred to a living trust.
  • Proceeds of a life insurance policy for which you've named a beneficiary.
  • Money in a pension plan, individual retirement account (IRA), 401(k) plan, or other retirement plan. Instead, name the beneficiary on forms provided by the account administrator.
  • Stocks or bonds held in beneficiary (transfer-on-death or TOD) form. If you want to change the beneficiary, contact the brokerage company.
  • Money in a payable-on-death bank account. If you want to name a different beneficiary, just fill out a simple form at the bank.

Leave Funeral Instructions

Wills are typically not read -- or even found -- until days or weeks after a death. That's too late to be of help to the people who must make immediate decisions about the disposition of a body and funeral or memorial services. Instead, make a separate document spelling out your wishes, and tell your executor where to find it when the time comes.

Reduce Estate Taxes

If you expect your estate to owe federal estate taxes, you may want to take steps now to reduce the tax liability. A will won't help you avoid taxes. Many kinds of trusts can reduce or postpone the tax bill.

Avoid Probate

Property left through a will usually must spend several months or a year tied up in probate court before it can be distributed to the people who inherit it.

Put Certain Conditions on Gifts

There are also a few legal limitations on what you can do in a will. For example, you cannot leave a gift that is contingent on the marriage, divorce, or change of religion of a recipient. You can, however, try to influence lesser matters. For example, you could leave money "to Jeremy, if and when he goes to college." Making such conditional gifts, however, usually opens a can of worms -- who will enforce the will's conditions, and for how long?

Leave Money for an Illegal Purpose

This one doesn't come up often, but you can't earmark money for something illegal, such as encouraging minors to smoke.

Arrange to Care for a Beneficiary With Special Needs

If you want to provide long-term care for someone, a will isn't the place. Far better to set up a trust that's tailored to the beneficiary's needs. See a lawyer who's an expert in the complicated laws that affect this situation.

Leave Money to Pets

Pets can't own property, so don't try to leave them any in your will. Instead, leave the animal to someone who has agreed to provide a good home -- and leave that person some money to help out with pet-related expenses. Some states allow you to set up trusts for animals, but that's probably not necessary if you have confidence in the person you've named to care for your pets after your death.

How to Handle Items You Can't Put in Your Will

These Nolo products can help you accomplish the things you can't put in your will:

  • Quicken WillMaker Plus allows you to create a living trust, an estate-tax-saving AB trust, a financial power of attorney, a living will, funeral instructions, and a letter to your executor.

  • 8 Ways to Avoid Probate, by Mary Randolph, J.D., teaches you how to handle property that passes outside your will, including life insurance, pay-on-death bank accounts, jointly owned property, retirement accounts, and more.

About the Author Cona Elder Law

Cona Elder Law is a full service law firm based in Melville, LI. Our firm concentrates in the areas of elder law, estate planning, estate administration and litigation, special needs planning and health care facility representation. We are proud to have been recognized for our innovative strategies, creative techniques and unparalleled negotiating skills unendingly driven toward our paramount objective - satisfying the needs of our clients.

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