21 Things You Should Never Include in Your Will

A will is a legal document that outlines how you want your property and other assets divided after you pass away. However, it’s important to be mindful of what you include in your will to ensure your loved ones inherit exactly what you intend (without any legal complications).

Bequeathing Major Assets Solely Through a Will

While it might seem straightforward to pass significant assets like business interests or large financial holdings through a will, it is not advisable. The process involved with wills is both slow and public, exposing your assets and business dealings to potential legal challenges and court delays. 

Instead, it’s recommended to use a trust to transfer these assets. Trusts can bypass the inconvenient probate process, offering a more private and efficient means of managing significant asset transfers upon your death.

Conditional Gifts

Attaching conditions to bequests in your will can create more confusion and legal headaches than clarity. It’s important to understand that such conditions are often unenforceable. 

For instance, leaving your car to your sister only if she divorces your brother-in-law would not be legally valid. However, if you’re aiming to encourage certain achievements, like awarding a gold necklace to your granddaughter upon her graduation, it’s technically permissible but still tricky to enforce.

Funeral Wishes

While you might be tempted to include funeral preferences in your will, it’s generally ineffective. Your final arrangements (such as whether you prefer burial or cremation) might not be honored as your will typically isn’t read until after the funeral. 

Moreover, your body isn’t considered part of your estate. To ensure your wishes are respected, it’s better to communicate them directly to your family or executors rather than including them in your will.

Personal Messages or Disinheritance

Including personal messages or disinheritance notes in your will can bring more trouble than peace. Although you might feel compelled to leave a personal note or exclude someone from your will, these actions can spark legal challenges. 

Avoid Legal Misunderstandings in Wills

Personal messages aren’t enforceable by law, often leading to misunderstandings and disputes among those you leave behind. 

Moreover, disinheriting someone without a legally sound reason could drag your family into a costly, drawn-out courtroom drama. Such contentious wills (if found ambiguous or incomplete) only prolong disputes and delay asset distribution.

Joint Property

When you own property jointly—be it a house or a bank account—the right of survivorship dictates that the property automatically transfers to the surviving co-owner upon your death. 

This means you cannot control the fate of joint property through your will. 

Joint Accounts

Stuart Schoenfeld, a partner at Capell Barnett Matalon & Schoenfeld LLP, advises against including joint accounts or accounts already designated to beneficiaries in your will. Since these assets automatically transfer to the named beneficiaries upon your death, mentioning them in your will is unnecessary and could invite confusion and potential legal challenges. 

It’s more straightforward and efficient to let these accounts pass directly to their respective beneficiaries, sidestepping the complexities of the will.

Business Interests in an Active Business

Involving your active business interests in your will is not advisable. Schoenfeld highlights the operational difficulties a business faces when its ownership is entangled in the probate process of a will. 

Instead, crafting a proactive succession plan or an estate strategy for your business ensures a smoother transition and avoids disrupting the business’s functionality during the probate period.

Business Succession Plans

If you’re a business owner, it’s critical to separate the future of your business from your personal will. While a will is designed to distribute personal assets, business continuity requires specific planning. 

This could include setting up buy-sell agreements, designating a successor, or forming a trust. Such measures help maintain the stability and operations of your business after your passing. 

Bequests to Pets

Legally, you cannot leave assets directly to pets, as they are not capable of owning property. Instead of trying to bequeath assets to a pet through your will, consider arranging for their care through a trusted friend or family member, or set up a fund that provides for their future care. 

You might also think about donating to an animal charity in your pet’s name.

Unenforceable Conditions

Including conditions in your will that are either unenforceable or against public policy is a risky move that can invalidate your entire will or specific provisions. 

Conditions that are discriminatory, involve illegal activities, or infringe on someone’s rights are particularly problematic. These types of clauses can lead to legal disputes and potentially render your will invalid.

Retirement Accounts

It’s essential to understand that retirement accounts like IRAs, 401(k)s, and 403(b)s already have designated beneficiaries and therefore should not be included in your will. These designations override any contrary instructions you might leave in a will. 

To change a beneficiary for these accounts, you should do so directly through the account’s custodian or plan administrator.

Update Your Will After Life Changes

Regularly reviewing and updating your beneficiary designations (especially after major life changes such as marriage or the birth of a child) ensures that these assets are passed on according to your current wishes and in a tax-efficient manner.

Assets Not Fully Owned

Listing assets you don’t fully own, such as items under a finance agreement, in your will is another misstep. These assets aren’t legally yours to give, so items like a leased vehicle or an expensive gadget bought on hire purchase must typically revert to the lender. 

Make sure only to include items in your will that you own outright to avoid legal complications and confusion among your heirs.

Digital Assets

As digital assets become increasingly common, it’s important to think about how your online accounts and digital assets will be managed after your passing. Rather than including these in your will (which could expose them to probate and potential disputes), consider using a separate document or an online service for their management. 

This approach allows you to securely store sensitive information like passwords and account details, ensuring your loved ones can access them easily without compromising security or privacy.

Organ Donation

While expressing your final wishes is important, your will isn’t the place for detailed organ donation preferences. For organ donation, simply register with your state’s donor registry and indicate your decision on your driver’s license. 

This ensures that your intentions are clear and respected without burdening your will with additional directives.

Personal Property

Deciding who gets your cherished belongings might seem straightforward, but detailing it in your will can lead to unintended consequences. A will that lists every item and its recipient can fuel disputes and confusion among your loved ones. 

Furthermore, since wills become public records after your death, anyone can peek into your estate details, including who received what. 

Simplify Estate Planning 

To keep things simple and private, consider a personal property memorandum—a flexible document that can be updated as needed without the formalities of amending a will (just ensure it’s referenced in your will and stored securely with it to avoid any legal headache).

Life Insurance

Life insurance should also be excluded from your will, particularly if you have a high-net-worth estate subject to substantial taxes. Schoenfeld suggests utilizing a life insurance trust instead. 

This allows the policy to bypass your will, shielding it from estate taxes, which can consume a significant portion of the policy’s value. A trust ensures that the full benefit of your life insurance can support your beneficiaries without a hefty tax hit.

Properties Located Overseas

Dealing with overseas properties in a U.S. will can introduce significant complications and delays. A U.S. will might not be recognized or enforceable in the country where the property is located, necessitating its validation through the US court system—a process that can be both time-consuming and costly. 

Creating Wills for Overseas Property

To streamline this process, it’s advisable to create a separate will or estate plan that adheres to the local laws and regulations of the country where the property is situated (Tip: consulting with a local attorney can help ensure that property transfers are handled efficiently).

Assets for Beneficiaries With Special Needs

When planning for beneficiaries with special needs, direct inheritance can unintentionally disrupt their eligibility for government benefits. A special needs trust is a better alternative, as it provides financial support without affecting benefit eligibility. 

This type of trust is managed by a trustee who oversees the assets and ensures they are used for the beneficiary’s care and welfare without jeopardizing their access to government programs. 

Confidential Information

Wills undergo a public court procedure known as probate, where your will becomes a public document. Asher Rubinstein, an attorney specializing in trusts and estates, points out that including sensitive information like bank account numbers, passwords, or keys to digital wallets in your will could lead to security breaches. 

Since anyone can access these public records, it’s important to keep such confidential details out of your will to protect your privacy and security.

Outdated Provisions

Life changes (e.g. marriage, divorce, or the birth of additional children) necessitate updates to your will. Rubinstein highlights the complications of outdated wills with examples like a man who fails to revise his will post-divorce or a mother who doesn’t update her will after the birth of another child. 

The Dangers of Outdated Wills

These oversights can lead to lengthy legal battles to resolve ambiguities that a current will could have easily prevented. 

Ensuring your will is updated regularly avoids these pitfalls, keeping your estate plan aligned with your current wishes and life circumstances.

Vague Language and Inconsistencies

Clarity is critical in legal documents, especially wills. Rubinstein emphasizes the importance of specific language to avoid ambiguity. 

Avoid Conflicts Over Personal Items

For instance, stating, “My favorite painting to my daughter, Chloe,” can cause confusion if it’s unclear which painting you mean or if multiple heirs desire the same item. Such vagueness can lead to disputes and complicate the execution of your will, potentially dragging your loved ones into unnecessary conflict.

Up Next

1: Teacher fired after refusing to use student’s preferred pronouns scores major legal victory

2: 20 Expenses Parents Should Stop Covering for Their Adult Children