Writing a will is a good way to ensure that your assets are distributed according to your wishes. The fact that you wrote a will does not automatically mean it’s valid, however: certain provisions cannot be legally upheld. Before you decide to leave everything to your cat, read on.
What Cannot Be Included in a Will
The following items provide a general overview of what you may not include. This is not an exhaustive list. An attorney can help you make smart and enforceable choices for property distribution.
- Gifts designated for illegal purposes: You can’t leave money to people for illegal purposes. Declaring in your will that you’re leaving someone $1,000 so they can purchase controlled substances is unenforceable: you’re trying to condition their gift on an illegal act.
- Gifts for pets: Your cat Fluffy may be your favorite creature on the planet, but pets aren’t legally allowed to own property. Don’t leave your entire estate to Fluffy. Instead, work with an attorney to make provisions for Fluffy’s care. You can leave gifts of money or other assets to a human caretaker, with the condition that it is to pay for your pet’s care.
- Gifts with illegal conditions: Maybe your son married someone you never liked, and you want to leave him the house—but only if he divorces his wife. Gifts with illegal conditions placed upon them, like divorce, marriage or change of religion, are not enforceable. Generally, however, you can place conditions on your gifts, like giving your granddaughter a certain sum if she takes over the family business. Your attorney will let you know if your desired conditions are both enforceable and practical.
- Assets that belong to others, in whole or in part: Finally, you cannot include assets that belong to others. Whether they’re jointly owned or entirely owned by the other person, any provision that gives away another person’s legally owned property will not be upheld.
What Shouldn’t Be Included in a Will
There are also things that shouldn’t be included in a will, for practical reasons. For example, funeral arrangements, powers of attorney and advance care directives should be in separate documents. Since wills are often read after death, your survivors may not find your instructions in time.
Working with an attorney will ensure that your estate planning documents are legal and enforceable. When you need strategic estate planning help, call Dworken & Bernstein for a consultation.