Limitations of Wills

Updated: December 19, 2022

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 drawbacks are that the content of your will is subject to federal and state laws, is reviewed by the probate court, and can take weeks to months to be read and verified. 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.

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.
  • All assets that go through probate are subject to estate and inheritance tax and available to creditors.

Although executors should find and read your will right after your death, in many cases it is not revealed to others 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. special needs trust is a better option.

Wills can be contested.

  • Heirs, beneficiaries named in any version of your will, even revoked versions, and unpaid creditors or any other person having a property right or claim against your estate can contest your will.
  • See the Why Would Your Will be Contested? section for details on situations this could happen and what errors in your will could cause this to happen. 
  • The How Can You Prevent This? section provides ways to reduce this risk.
  • Trusts and other estate documents that already name beneficiaries cannot usually be challenged

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 they automatically get a third of your estate anyway.
  • 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 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.

You cannot add stipulations that:

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

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 or leave any gifts that would be used by your pet to the guardian you have named in your will.