Planning the future for your loved ones

Limitations of Wills

While your will legally allows you to protect certain personal assets and specify your wishes after you die, there are certain things you won’t be able to do with your will. There are some practical limitations, but the primary drawback is that the content of your will is subject to federal and state laws and is reviewed by the probate court. Therefore, do not attempt to include anything that is unlawful. It might invalidate some or all of your will.

Practical Limitations

  • The will is not valid until you die and can’t protect you if you become incapacitated and are unable to manage your finances or other assets.
    • In this situation the court could step in and appoint a conservator (state appointed guardian) to manage the estate on your behalf.
    • It is best to anticipate this by setting up a living trust, in addition to a will, to help you avoid conservatorship.
  • To be validated a will must go through the probate process.
  • This is the legal process that is necessary to verify your will.
  • This makes the content of your estate part of the Public Record and available for all to see.
  • Although executors should find and read your will right after your death, in many cases it is not read until the settling of the estate during the probate proceedings after the funeral.
  • In many cases this may take weeks to months to happen.
    • Because of this, any specific instructions you left for the wake, funeral, or burial in the will are not available until well after your death.
    • You can also leave these instructions in an Advanced Directive, or similar document, that is available before your death.
  • You cannot use your will to change beneficiaries on trusts or other estate documents that already name them.
  • While it is best to name a guardian for a disabled person in your will, it is difficult to arrange for long-term care or any specific special needs of that person
  • A special needs trust, is a better option.

Limitations on Requests or Stipulations

While you may include requests and make stipulations on certain gifts in your will, there are some that may be inappropriate or just can’t be done.

In 49 states you can’t use a will to disinherit a surviving spouse or otherwise prevent them from their inheritance. The same is true for minor children.

  • In Pennsylvania you can disinherit your spouse, but she automatically gets ⅓ of your estate anyway.
  • If you try to cut your spouse out of your will in others ways, they will still be entitled to a part of your estate. The amount is determined by your state.
  • In Louisiana the will cannot be used to exclude an adult child from inheriting any part of your estate, all other states allow this.

You cannot add stipulations that:

  • force a beneficiary to do something, such as getting divorced, change religions, or not have a same sex marriage
  • make the gift subject to doing something illegal or be used for illegal purposes.

However, you can make some gifts conditional for the sake of incentive, such as graduating from college or for specific reasons, such as to buy a house.

  • As you can imagine, there is the problem of who will enforce this.
  • It might be better to set up an educational trust or housing trust that can only be used for the specified purpose. 

Since pets can’t own property, you can’t leave them money or gifts in your will.

You must either set up a pet trust fund or leave any gifts that would be used by your pet to the guardian you have named in your will.

General References

Disinheriting a Relative Can Be Complicated. Elder Law Answers website. Updated: August 2, 2019. Accessed: October 4, 2019.

Disinheriting Someone: Things to Consider. McClellan Legal website. Posted: February 7, 2018. Accessed: October 4, 2019.

Limitations of Wills. Legal Match website. Accessed: October 4, 2019.

What a Will Won’t Do. NOLO website. Accessed: October 4, 2019.What Not To Include When Making a Will. FindLaw website. Accessed: September 26, 2019.