Will They or Won't They? What Your Will Can and Can't Do
Reviewed by Carina Jenkins, J.D.
By writing a last will and testament, you can make sure your chosen heirs receive their inheritance after you die.
However, wills have limits. So, before you leave a large sum of money to Fido, you should understand what you can and can’t do with this important legal document.
A last will and testament provides legally enforceable instructions regarding the distribution of your estate after you die. This may include monetary assets, personal property and individually owned real estate. These assets and items may be left to a single heir or divided among multiple beneficiaries as a percentage of the total estate or by making specific bequests. Bequests let you bequeath items — such as cars, heirloom jewelry and other property — to chosen individuals.
A properly written will also lets you provide other important instructions, such as:
- Naming a guardian for a minor child or disabled adult
- Appointing an executor, who is responsible for ensuring the will is carried out
- Designating a successor guardian to manage the assets of a child or grandchild
Although a will is an important aspect of estate planning, there are a few things you can’t — or shouldn’t — use it for, including:
- Leaving money to pets: Pets are considered personal property under U.S. law, which means you can’t legally leave money or property to your pets through a will.
- Making provisions for pet care: Although you can add a pet clause to your will to provide instructions for its guardianship and care, this isn’t a reliable way to ensure your pet’s security. Wills typically have to go through a probate process, which can delay the transfer of your pet to its designated guardian.
- Providing funeral or burial instructions: Because a will may not be found or read immediately after your death, it isn’t an ideal place to specify preferences for these final arrangements.
- Leaving conditional gifts: A conditional gift requires the recipient to meet certain criteria before receiving their inheritance. For example, an heir may need to finish college before receiving any money. Legally, conditional gifts may be included in a will, as long as the conditions don’t disregard public policy, encourage an immoral act or require the heir to break a law. However, conditions aren’t always enforceable through a will, so it isn't the best place for them.
- Bequeath certain shared property: If you co-own property, you may not be able to leave it to an heir in your will. If you own property as joint tenants or under another arrangement with survivorship rights, your interest will pass to the co-owner when you die. However, if you co-own the property as tenants in common, you can probably leave your interest to an heir through your will.
- Bequeath property or assets held in a trust: If your property or assets are held in a trust, they shouldn’t be included in your will. Otherwise, you risk creating a conflict of interest that can create legal problems for your estate.
- Name a life insurance beneficiary: Life insurance and other investment accounts that already have a named beneficiary shouldn't be included in your will. These assets automatically pay out to the beneficiaries named in the contract.
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Although a last will and testament has limitations, there are other ways to make sure your last wishes are carried out in regard to pet care, funeral instructions and conditional gifts.
Many pet owners make nonlegal agreements for the care of their pets after they die, but a pet trust may be a better option. A pet trust is a legally enforceable arrangement that lets you name a guardian, set aside money and provide detailed instructions for your pet’s care. You can also name a successor caregiver to care for your pets if the designated caregiver can’t. Plus, unlike standard trusts, a pet trust may continue throughout a pet’s life, which is critical for the care of horses, parrots and other animals with long life expectancies.
It’s also important to keep family members informed about your plans for your pet’s future and to let them know where to find relevant documents and records. This can ensure that your wishes are carried out quickly and your pet isn’t left in transition.
In most areas, if you don’t leave written instructions regarding your final arrangements, state law dictates who can make these decisions. However, in many states, if you’ve granted someone the healthcare power of attorney, you can also give them the right to make decisions about your funeral and burial. In some areas, a healthcare directive may also let you specify funeral and burial instructions and designate an individual to carry out your wishes.
Otherwise, you may leave instructions for your funeral and burial in a letter to your will executor. This letter may include your choice of burial or cremation, designated pallbearers and any other preferences you may have.
Some testators place conditions on gifts to prevent heirs from financially mismanaging their assets. Often, this can be accomplished by setting up a trust and naming a trustee to manage the relevant assets, releasing them only if the specified conditions have been met. These conditions may be expressed in a letter of wishes written by the decedent. Although this document isn’t legally binding, it can help your trustee honor the conditions you’ve set.
Although trusts and wills both provide instructions for transferring property and assets to your heirs, they serve different functions. While a will simply provides instructions for the distribution of assets, a trust holds those assets so they can be managed and distributed by a designated trustee, who you entrust to carry out your wishes.
Although a will is often sufficient for individuals with simple estate planning needs, trusts can be helpful in more complicated situations or if you want to avoid probate. A knowledgeable financial planner or estate lawyer can help you decide what’s right for you.
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