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. Do not attempt to include anything that is unlawful; it may invalidate some or all of your will.

Practical Limitations

Your 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 appointing a Financial Power of Attorney or setting up a living trust in addition to a will to help you avoid conservatorship.

Your 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 appointing a Financial Power of Attorney or setting up a living trust in addition to a will to help you avoid conservatorship.

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.

This may take weeks to months to happen.

  • Any specific instructions you left for the wake, funeral, or burial in the will are not usually available until well after your death.
  • You can leave instructions in an Advance 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, such as life insurance, retirement funds, joint ownership, payable-on-death accounts, or transfer-at-death deeds.

While it is best to name a guardian for a disabled person in your will, it can be 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 can’t be done, like directing the executor not to pay any taxes or file your will with the probate court.

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 the result is the same: they automatically get a part of your estate anyway, one third in PA.
  • If you try to cut your spouse out of your will in other ways, they will still be entitled to a part of your estate.
    • The amount is called the Spousal Share and is determined by your state and can depend on how property is shared in your state.
    • In most states this relates to the intestate laws, although in some states spouses are only entitled to their respective share of the joint and community property.
    • In Georgia, the Spousal Share is a living allowance for one year.
  • In Louisiana, the will cannot be used to exclude an adult child from inheriting any part of your estate; all other states allow this.
  • For further details see Inheritance Law.

You cannot add stipulations that:

  • Force a beneficiary to do something such as getting divorced, change religions, or not have a same sex marriage; and/or
  • Make the gift subject to doing anything illegal or be used for illegal purposes.

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.

    • There can be the problem of who will enforce this.
  • It may 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 assets, you can’t leave them property, 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.

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