When estate planning comes to mind, many people think of wills as the ultimate way to control what happens to their possessions and money after they die. However, wills are subject to limitations that may impact what they can help you do. 

The competent and friendly team at Keystone Law Firm is glad to help paint a better picture of the limits of a will. And by understanding your will’s limitations, you can take steps to find alternatives best-suited to serving your interests. Some of the primary limitations on will include the following:

1. Asset Distribution

Your will can only distribute the assets you outright own at the time of your death. As such, if you jointly own property with someone else, the will has no bearing on those assets. The same applies to: 

  • Property or accounts that have a named beneficiary – the will cannot go against these designations. This may be the case for life insurance policies, retirement accounts, and some brokerage accounts, 
  • Payable-on-death (POD) or transfer-on-death (TOD) accounts. You may have named a beneficiary for these accounts, so the property won’t be subject to distribution through your will. 
  • Assets held in a trust – if you’ve created a trust, the will usually won’t override the terms of the trust. 
  • Community property – this denotes property obtained during a marriage in some states. In such a case, your spouse usually owns half of the community property, regardless of who is named on the deed or title. Simply put, they have the right of survivorship or the right to inherit the property no matter what your will states.  

You must take special care in handling these assets if you want them to go to specific individuals after your death. This may imply working with a financial advisor, lawyer, or other professional to help you best protect your interests and those of your loved ones. 

2. Timeframe for Executing a Will

A will generally must be executed while you’re alive. The document must be signed by you and witnessed by two adults not named in the will. Even so, some states have adopted laws allowing the execution of “holographic” wills, which don’t require witnesses but must be entirely in the testator’s handwriting. 

However, most states do not recognize holographic wills as legal documents. Hence, if you die with a holographic will and no other valid will, your estate will be subject to intestacy laws. Intestate succession laws determine how your property will be distributed if you die without a will – which may be contrary to your wishes.

3. Probate Avoidance

Wills are public records and, as such, are subject to probate. Probate is the legal process during which a will is proven valid and its contents are carried out. The probate process usually involves going to court – this is often time-consuming and expensive. 

That said, you may avoid probate by using a revocable living trust or other types of trusts. You may also designate beneficiaries for your assets. These methods can help ensure the distribution of your property according to your wishes without the exhausting probate process. 

4. Changes to a Will

You can change your will by creating a codicil. This document must be signed and witnessed the same way as the original will. It outlines the changes you wish to make to your will and must be stored with the original document. 

However, it might be logical to create an entirely new will sometimes. For instance, if you need to make multiple changes or if the change is significant, starting from scratch might be easier than amending an existing document. 

Keep in mind that for a will to be valid, it must be up-to-date. Thus, review your will regularly and make changes as needed. Case in point, it might help to update it after major life events, such as getting married, having children, or buying a home. 

5. Wills and Minors

If you have young children, you need to know how the will work with regard to minors. In general, a minor cannot own a property outright. Instead, the property must be held in trust for the child until they reach the age of majority (18 or 21 in most states). 

The trustee is responsible for managing the property and ensuring it serves the child’s best interest. For example, the trustee or guardian might use the money from the trust to pay for the child’s education or medical expenses. 

As the parent, you get to decide who will serve as trustee and how the funds will be used. Essentially, if you leave money or property for your children, you must appoint a guardian to oversee it on their behalf until they’re old enough to take charge. 

Contrary to popular belief, estate planning isn’t complex, especially if you know what you’re doing and what to expect. Thus, your awareness of the limitations of a will can help ensure your loved ones are taken care of as planned. And by liaising with a knowledgeable estate planner or attorney, you can make the process as straightforward and stress-free as possible.


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