7 Things Wills Can't Do
Your last will and testament outlines your wishes and directions for everything you’ve left behind. Once you’re no longer around to manage your estate, your finances, and care for your dependents, your will becomes the authority. However, although these are your assets to distribute, there are limitations on what a will can do. Here are seven things you may not have realized you cannot do in a will.
Conditions and Constraints on Gifts
To be clear, there are certain conditions that can be put on gifts in the wills, however they are limited. There are two kinds of conditions the court will recognize: Condition precedent and condition subsequent. A precedent is a condition that must be met prior to receiving the gift. For example, graduating college on time, turning a specific age, etc. A condition subsequent is given contingent on the use of the funds. For example, a property left to a family member provided they don’t tear down the structure on it.
While both of these can be found in wills, they are limited and can be difficult to enforce. Gifts that require marriage or divorce (i.e. gift the house only if the beneficiary leaves a disliked spouse) or change of religion are prohibited. Furthermore, gifts with conditions must be seen by the court as reasonable to fill within an allotted time period. Condition subsequent gifts can be very hard to enforce as one would need to bring the violation to the court’s attention. When drafting your will, it’s important to discuss conditions with your attorney to decide what is feasible.
Leave Money to Pets
Of course we love and want to care for our pets after our departure, however, they are not people and cannot strictly be seen as beneficiaries in wills. But that does not mean you cannot provide for them! In most states, including Washington, the law provides a means to care for them called pet trusts. This trust is set up to support the animal after your departure using the funds you left behind. However, for most people, rather than leaving a trust to your pet, it makes more sense to leave your pet in the care of a friend or relative who will love and care for them as you would.
Arrange for Long-Term Care
For those responsible for the long-term care of a family member, planning for their own departure can be a delicate matter. As a general rule, wills are not the correct place to plan for long-term care. There are ways to prepare for this, however. A good option for many is a special needs trust, specifically designed to care for the one you love when you cannot. When planning for long-term care, though, speak with your attorney to find the best option for your loved one’s situation.
Contradict or Change Life Insurance or Retirement
When you die, your life insurance and retirement funds have beneficiaries already designated. These are considered separate from the will. At times, a person may wish to make changes in their last days and attempt to override their life insurance policies in their wills. It’s important to realize that your last will and testament is not the final authority. As these payouts are not your own property, and rather an agreement made between you and the life insurance company, they are not yours to gift. Life insurance and retirement payouts will be disbursed according to the agreement you set up with the company. If you have concerns about this, talk to your attorney!
The person you choose to marry is the default beneficiary when you pass. If you remain legally married at the time of your death, no will or testament can take your spouse’s rights away; even if you’re separated. Any joint property: real estate, vehicles, bank accounts, cannot be taken from your spouse to gift to someone else. That’s not to say you can’t give particular gifts upon your passing; but you cannot gift something that your spouse is legally entitled to inherit. You and your spouse should talk to an attorney together when planning your will.
Funeral or Memorial Instructions
A will is not the proper place to plan for your memorial or funeral. The process of hearing and enacting the will upon your death can be a long one, and by the time your will is read, your body is likely to have already been put to rest. It’s conventional to write up a separate document outlining your burial wishes and given to your executor. We can help you set this up.
Stocks and Bonds
This may be misleading, as leaving stocks and bonds are much more complicated than other assets, but can still be gifted in some situations. The big question with stocks and bonds is who legally owns them? Many times, they are owned not by an individual but by a company, a trust, or jointly by a couple. Also, depending on the circumstances, and the state you reside in, stocks and bonds may or may not have to go through probate. If you hold stocks, speak with your attorney about a Transfer on Death Provision or a Pay on Death Provision -- two more accepted means of gifting stocks upon your passing.
Planning for your family isn’t as simple as a piece of paper with your wishes on it. The varied nature of assets and relationships means you need varied planning for different circumstances. When beginning your estate planning process, write down what’s most important and valuable to you. Your attorney will walk through the list and help you come up with a plan that protects those you care about and manages all the valuables in your care. We never know what tomorrow will bring, so don’t wait to contact us to put your affairs in order.