Limited Power: What a Will Should Not Do

Posted on: 22 December 2015


There is no doubt of the importance of a will when it comes to planning your estate. You should be aware of a will's inherent limitations, however. To have complete estate planning package that covers all eventualities, you must employ a number of legal devices and provisions. Foremost in planning should be a consideration of what a will should not do, and what means can be used to help avoid the probate process as much as possible. To learn more about what a will should not do, read on.

Provisions that Override Wills

If you take steps to institute the below provisions, you will avoid probate on the designated property, retain your financial privacy and allow your beneficiaries to inherit without the usual wait for probate to be final, which may take months. It's important to note that even if you specifically address the same property and assets in your will, the following provisions will automatically override any will, regardless of the date of the will.

  • Trusts: If you are familiar with the workings of a will, a trust has similarities. Trusts are set up before the owner's death and full control is maintained until death or incapacity, when it passes to the trustee. The trustee fills a role similar to an executor, who is in charge of ensuring that the contents of the trust are distributed to the named beneficiaries according to the provisions within. Probate is not required and the contents of the trust are entirely private to all parties.
  • Deeds: Placing a persons name on a deed, such as adding a name or using a right of survivorship designation, supersedes a will's provisions.
  • Transfer on Death (TOD): Any investment, retirement, savings, checking, stock, bond and other accounts can hold a TOD, which literally transfers the contents to the named holder on death. These provisions are sometimes called payable on death.

Provisions Better Left Out of Wills

  • Funeral and Burial Arrangements: It's quite common for people to use a will to express their burial and funeral wishes, but these plans would be better laid out in a separate, more easily-accessible document. Many times the will is not located or read until after the funeral takes place, so make sure that your executor knows the location of these plans to expedite the arrangements.
  • Conditional bequests: People often put conditions on bequests in an effort to ensure that their inheritance isn't wasted. For example, you may place the condition that a sum of money bequest to a grandchild be used only for educational purposes. Tread carefully when placing conditions on bequests. In some states conditional bequests are illegal, which could cause probate to be held up and, in some instances, make your will invalid. Consider, as well, the possible burden being placed on your loved ones with conditional bequests.

Contact a law firm like O'Connor Mikita & Davidson LLC for assistance in creating a full estate planning package that contains not only a will, but much more.