3500 Comanche NE, Bldg. B, Albuquerque, New Mexico505-234-7007inbox@fdlawyersnm.comMonday - Friday, 9:00 am - 5:00 pm

What You Can’t Do In a Will

Many people know what they can accomplish with a will: spell out who takes which portions of their property and how, who will care for their minor children in the event of the person’s death, etc. But, you may not be aware that there are certain things you cannot accomplish with a will. Though a will is a simple and effective way to address your estate planning wishes (if it is done correctly, of course) the following is a discussion of some things that, even if you do them, “by the book” will not be effective when included in your will. When discussing your intentions and wishes it is useful to have an estate planning attorney represent your interests. If you have other questions about wills, be sure to check out our frequently asked questions about wills in New Mexico article.

Leaving Certain Types of Property

  • last willBonds or stocks which are held in a transfer on death account cannot be left to a different person in your will. Should you wish to change the beneficiary of such an account, you should do so now rather than rely on a will provision to do so after death.
  • You cannot use your will to leave property that you own as a joint tenant with someone else, or community property which comes with rights of survivorship. Even if you attempt to do so in your will, upon your death, these kinds of property will simply belong to the remaining joint owners, by operation of law. So, a statement in your will leaving the home you own jointly with your wife to someone else will be ineffective.
  • Bank accounts of the payable on death variety cannot be given to a beneficiary specified in your will if that person is not the beneficiary already named on the account. As with stocks and bonds transferable on death, the beneficiary should be changed during life.
  • You also cannot specify in a will what you would like to happen to property you’ve already put into a living trust. See our articles for more information about trusts and probate avoidance, the benefits of a living trust and frequently asked questions about living trusts.
  • Pension plans, IRAs, 401k plans, and other retirement plans with a named beneficiary cannot then be given to someone else specified in your will.
  • The payout from a life insurance policy for which a beneficiary is already named cannot then be given to a different beneficiary named in your will.

Specify What Should Happen At Your Funeral

Because a person’s will may not be sought or discovered until weeks after the person’s death, specifying in your will what should happen at your funeral or how your body should be disposed of is usually not effective. Instead, a person should consider executing a separate document which details their wishes with regard to their funeral, and inform the executor of the estate that the document exists and where it can be located.

Give Money to Your Pets

By law, a pet cannot own property. As such, you should not attempt to leave a portion of your estate to your pets. If you’re intent on having your pets cared for in the event of your death, consider leaving your pet with a person you trust to care for the pet in the way you want. Also, some jurisdictions allow “pet trusts,” which allow people to leave money in trust for the care of their pets, and designate a trustee who will use the money to care for the pets.

Avoid Estate Taxes

If you give away more than $5.25 million in a lifetime, your estate will likely owe federal estate taxes. Unfortunately, a will provision cannot help avoid this fact. Instead, consider certain types of trusts, which you can discuss with an experienced estate planning attorney.

Make A Gift Conditional

With respect to leaving certain kinds of gifts to beneficiaries named in your will, there are limitations on what conditions can be placed on the receipt of those gifts. For example, in your will you cannot condition a person’s gift on that person’s divorcing their current spouse, or changing their religion. You can, however, specify less stringent conditions such as “to my daughter, when she goes to college.” If you decide to make any gift condition, however, be wary- doing so usually invites will contests, and there is no telling whether anyone can or will enforce the conditions.

Designate Money for an Illegal Purpose

Though this restriction rarely comes up, it goes without saying that you cannot leave a portion of your estate for an illegal purpose, such as a farm on which to grow illegal marijuana plants.

Avoid Probate

Generally, most property given away by will needs pass through the probate system, which can be a lengthy (and often expensive) process. There are ways to avoid probate that are not accomplished in a will, which can be discussed with an experienced estate planning attorney. Feel free to contact our office for a free consultation regarding planning for your estate.