We’ve written a great deal over the years here on the Blog about making sure your estate plan is complete. That suggestion definitely applies in spades to your will. A Last Will and Testament that is outdated, incomplete, or vague can leave your executor and your heirs scrambling to figure out what it was you meant to do with your estate.
But can a will be too complete? Are there certain stipulations that really shouldn’t be included at all? Based on this recent Kiplinger article, the answer is a definite yes. Reporter Erin Bendig interviewed a wide range of elder law attorneys and other professionals from across the country and came up with a list of ten things that just don’t belong in your will. In the case of some of these points, the issue is privacy. For others, the legal complexities mean they should be handled in other ways. And in a few cases, including some things in your will is just plain inappropriate.
Let’s take a look at Bendig’s list to see if we agree. We’ve done our best to shorten the attorneys’ responses where necessary, so we encourage you to check out the Kiplinger article for the full quotes.
Underestimating the Need for a Will
Bendig begins with a statement we’ve heard many times: many Americans underestimate the importance of estate planning. There are many reasons why this avoidance is so common.
“More than 50 percent of people who don’t have a will say it’s because they don’t have enough assets to leave anyone,” she writes, quoting Caring.com’s 2025 Wills and Estate Planning Study. “And almost one in four respondents that did have a will admit to not updating the document since it was first written.”
In other words, writing a will is not a “one and done” proposition. Your needs, and the make-up of your family, will often change with time, and your estate plan needs to change with them.
Your Will: the “Anchor of Your Estate Plan”
Bendig suggests that, when it comes to having a proper will, the size of your estate doesn’t matter.
“[H]aving a proper estate plan in place is essential, regardless of how much money you have,” she writes, “as it does more than distribute your assets; it outlines how your personal affairs will be managed after you’re gone and the kind of medical care you want to receive. Estate planning is especially important for women and single adults, who often have fewer assets or support as they age.”
That’s why legal experts stress that we all need to overcome our reluctance to think about death (especially our own) and get this process underway. “So,” Bendig adds, “if the idea of estate planning has got you down, start with a will. It’s the anchor of your estate plan and can help avoid probate, which forces your heirs to enter a potentially lengthy legal process to distribute your assets.”
Your Will Should Be Complete – but Some Things Don’t Belong There
In preparing this article, Kiplinger’s Bendig spoke with several legal experts to determine what items need to be left out of your will. Here are their recommendations, edited for length.
Don’t Include Bequests to Someone with Special Needs
New York elder law attorney Melissa Negrin-Wiener told Bendig that people need to be very careful when leaving assets to a person with special needs. “Often, that individual receives government benefits that are means-tested (i.e., Medicaid, SSI), and leaving assets outright to them can cause them to lose their government benefits or the inheritance,” says Negrin-Wiener.
Instead, she states, “If you are leaving assets to a person with special needs in your will, be sure to leave it in a Supplemental Needs Trust.” Here’s where good legal advice is a must.
Don’t Include Your Pets, or Provision for Their Care
New York attorney Russel Morgan agrees that people love their pets and want them well cared-for after they’re gone. “But,” Morgan told Kiplinger, “pets are considered property and can’t be named as beneficiaries or inherit anything from a will.” Trying to do so can create confusion and possibly invite a legal challenge.
There are other ways to make sure pet care happens. “You could earmark a certain amount of money and ask a family member to care for the pet,” says Morgan, “but once the funds are released to them, there is no legal obligation to follow your exact wishes. So, it is best to leave pets out of the will and instead set up a pet trust to ensure the well-being of your furry friend.”
Omit All Assets Not Subject to Probate
New York attorney Daniel Bernard advises that those preparing a will separate assets that will go through probate from those that will not.
“Your will only controls the transfer of probate assets,” Bernard told Bendig. “Non-probate assets are all assets that have a designated beneficiary, such as life insurance, 401(k), brokerage accounts, IRAs, even bank accounts can name a beneficiary and be non-probate.”
The problem arises in cases where the will and the beneficiary designation differ. “If you name someone to take a non-probate asset in your will, the problem is that the beneficiary designation will supersede your will,” Morgan warns. “If the beneficiaries are different, this can cause contention and invite challenge to your estate plan.”
(This can be a major problem in cases of divorce and remarriage where a former spouse is still listed as your beneficiary. Make sure you update those beneficiary designations!)
Don’t Specify the Dollar Amount of Cash Gifts to Named Beneficiaries
Over time, says Wisconsin attorney Andrew Rosenberg, circumstances can greatly alter the value of an estate. If your estate has declined in value over the years, and your will leaves a fixed-dollar gift to an individual, your beneficiaries could lose much – or all – of their bequest.
“For example,” says Rosenberg, “if your will said ‘I leave $100,000 to my friend, Robert, and the rest in equal shares to my children,’ and you wind up only having $50,000 in your estate when you pass away, your children likely won’t receive anything because they are stuck with Robert’s large bequest ahead of their residuary distribution.”
The solution: leave property in shares or percentages, not fixed amounts. This can also apply to charitable gifts. Percentages allow for fluctuations in the value of your estate.
Avoid Including Gifts and Bequests That Are Conditional
This is a case where a well-intentioned gift can cause major legal headaches, says Texas attorney Jonathan Geserick.
“I’d also recommend not including any conditional gifts,” he told Kiplinger, “such as ‘If Anna stays married to Ben, Mary shall receive $100,000 from my assets.’ We want to exclude conditional gifts because they can lead to complications and legal challenges and make the estate more difficult to settle.” Keep things as simple as possible to avoid problems.
Keep Secure and Private Information Out of Your Will
It might not occur to us, but there are probably cases where a will includes personal data that needs to be protected. Ashley Higginbotham, Atlanta attorney, says this is a major error.
“I regularly explain to clients that Social Security numbers, financial account information and passwords to accounts should never be provided within the will itself,” she told Kiplinger. “The reason for such is that upon death, the will is filed with the Court in the State where the decedent lived. At that point, the will is a ‘public’ document whereby potential heirs and court staff may view it.”
Clearly this opens up the danger of fraud and identity theft, not to mention someone siphoning off your account balances. Instead, the attorney says, “consider creating a separate document for that information and safekeeping it with your will and other important documents. If it is a separate document, it does not have to be filed like the will and could be extremely helpful to your executor.”
Your Will is Not the Place for Funeral Instructions
Kiplinger’s Bendig asked Los Angeles attorney Jamie Wright about this issue. Wright’s reply was straightforward: your funeral wishes do not belong in your will, for a very practical reason.
“First, don’t specify funeral arrangements in your will,” says Wright. “They may not be reviewed until after the funeral. Instead, communicate your wishes directly with your loved ones or include them in a separate document.”
Hopefully you’ll be sharing your funeral wishes with your family well in advance of your death.
Handle Any Firearms Through a Gun Trust, Not Your Will
Monique Hayes practices business and estate law in Florida. She told Kiplinger that anyone who wants to pass a gun collection or other firearm along to an heir needs to follow the law carefully. That means your will should have a “No Firearms” policy.
Says Hayes, “There is one class of assets that I would absolutely exclude from distribution by will — guns. Guns are a unique asset and require the owner meet state and federal regulations (i.e. minimum age, mental capacity, et cetera), and for that reason, we encourage gun trusts to transfer and track those gifts without running afoul of the law.”
Don’t Use Your Will to Vent Anger at Family Members
We all know that family life can be contentious. But your will is not the place to air the family’s dirty laundry, or to speak ill of specific individuals. Venting your anger may be cathartic but it can cause great pain and potential legal challenges.
New York attorney Daniel Bernard was asked about this one. He told Kiplinger’s Bendig that clients may need to be advised to keep their emotions in check and not to disparage others, especially potential beneficiaries. “I have represented many clients who wanted to disinherit a child and wanted to list the reason,” Bernard recalls. “This will just cause more hurt feelings, and anger, and could lead to a challenge of your will.”
Instead, he suggests, soften your tone: “It is much better to simply state ‘for reasons best known to me I make no provision for X’.”
Use Other Legal Tools to Pass Along a Business
Finally, if your heirs are inheriting the family enterprise, it’s best to remember the saying, “Keep your business out of your will.” One big reason is privacy.
“Passing business interests within a Trust will allow for more privacy when it comes to business holdings and information,” said attorney Melissa Negrin-Wiener of New York. You don’t want proprietary business data becoming public in a probate proceeding.
Michael Dale, investment attorney in Tampa, agrees. “Consider setting up a separate agreement for the distribution of your business to avoid probate and ensure a smooth transition,” he suggests.
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(originally reported at www.kiplinger.com)