Five Things Never to Put in Your Will
If you're working on your estate plan - whether you're doing it yourself with an online service or working with an attorney - there are five critical mistakes I see over and over again. And quite candidly, these mistakes can create real problems for your family after you're gone.
I want to share with you the five things that should never be in your will, and more importantly, why putting them there can actually work against what you're trying to accomplish.
Why This Matters
Here's the thing - a will is an important estate planning document, but it's not designed to handle every type of asset you own. Some assets pass outside of your will through other legal mechanisms. When people try to control these assets through their will anyway, it creates confusion, delays, and sometimes expensive legal disputes.
Let me walk you through the five most common items people incorrectly put in their wills, and what you should do instead.
1. Jointly Owned Property
This is probably the most common mistake I see, and honestly, it catches a lot of people by surprise.
Let's say you own your home jointly with your spouse as "joint tenants with right of survivorship" or as "tenants by the entirety" (which is common for married couples in North Carolina). Then in your will, you write that you want your share of the house to go to your children.
Here's what actually happens: your will provision gets ignored. The jointly owned property automatically passes to the surviving joint owner when you die, regardless of what your will says. The legal principle is called "right of survivorship," and it supersedes anything in your will.
What to do instead: If you want to change who inherits jointly owned property, you need to change the ownership structure itself - either by removing the joint ownership designation or by transferring the property into a trust. This requires a new deed, not a will provision.
Common scenario where this creates problems: A parent remarries after being widowed and owns the home jointly with the new spouse. The parent's will says the home should go to children from the first marriage, but because of joint ownership, the new spouse gets the home automatically. The children get nothing, despite what the will says.
2. Retirement Accounts with Beneficiary Designations
You'd be surprised how often we see this. Someone has an IRA or 401(k) with a named beneficiary on file with the financial institution, but then their will says something different about who should inherit those retirement accounts.
Here's what you need to know: beneficiary designations on retirement accounts control who inherits those funds, not your will. The beneficiary form you filled out when you opened the account (or last updated it) is the legally binding document.
This creates problems in two ways:
First, contradictory instructions. Your will says your retirement account should be split equally among your three children. But the beneficiary form at the financial institution still lists your ex-spouse from 15 years ago. The ex-spouse gets the money. Your will can't override that beneficiary designation.
Second, outdated beneficiaries. Let's assume you named your sister as beneficiary 20 years ago when you were single. You've since married and had children. Your will leaves everything to your spouse and children. But that retirement account - which might be your largest asset - still goes to your sister because that's what the beneficiary form says.
What to do instead: Review your beneficiary designations on all retirement accounts regularly. Update them when your life circumstances change - marriage, divorce, births, deaths. The beneficiary designation form at the financial institution is what matters, not what's in your will.
3. Life Insurance Policies
Life insurance works the same way as retirement accounts - the beneficiary designation controls who gets the proceeds, not your will.
I see this mistake frequently with older policies. Someone took out a life insurance policy decades ago, named a beneficiary then, and never thought about it again. Meanwhile, they've updated their will multiple times, thinking that controls where the life insurance money goes.
It doesn't.
Common problem scenario: A business owner has a life insurance policy from 30 years ago with a former business partner named as beneficiary. The partnership ended 25 years ago. The business owner's will leaves everything to family, but that life insurance policy - worth $500,000 - goes to the former partner because the beneficiary designation was never changed.
What to do instead: Pull out all your life insurance policies and check the beneficiary designations. Make sure they match your current wishes. If they don't, contact your insurance company and file updated beneficiary designation forms. Do this every few years, or whenever your family situation changes.
Pro tip: Consider naming both primary and contingent beneficiaries. If your primary beneficiary dies before you and you haven't updated the form, the contingent beneficiary ensures the proceeds go where you want rather than into your estate (which could trigger probate).
4. Property Already in a Living Trust
If you've set up a revocable living trust and transferred property into it, that property is owned by the trust, not by you personally. Your will doesn't control what happens to trust property.
This creates confusion because people think, "Well, I created the trust, so my will should still control what happens to my stuff." That's not how it works.
When you transfer property into a trust, the trust document - not your will - controls what happens to that property. The trust has its own instructions about who inherits what and when.
Where this creates problems: Someone creates a living trust to avoid probate and transfers their home and investment accounts into it. Then they update their will and include provisions about who should inherit the home and accounts. Those will provisions are meaningless because the will doesn't control trust property. The trust instructions control, and those might be completely different from what the will says.
What to do instead: If you have a living trust, make sure you understand which assets are in the trust and which aren't. Your will should work with your trust, not contradict it. Typically, your will should have a "pour-over" provision that says any assets not already in the trust should go into the trust when you die. But the trust document itself should contain your distribution instructions for trust property.
Important note: This is one reason working with an experienced estate planning attorney matters. Coordinating your will and trust so they work together properly requires someone who understands how these documents interact.
5. Funeral and Burial Instructions
This one surprises people, but putting your funeral instructions in your will is actually a problem - not because it's legally wrong, but because of timing.
Here's why: your will typically isn't reviewed and validated until after your funeral. In North Carolina, the probate process begins after death, and your will is submitted to the court. But your funeral usually happens within days of your death, long before anyone officially reads and acts on your will.
So if your will says "I want to be cremated" but your family doesn't know that, and they arrange a traditional burial before the will is read, your wishes won't be honored.
What to do instead: Put your funeral and burial instructions in a separate document that your family can access immediately. Tell your family members where this document is located. Better yet, make your wishes known to your family directly and consider pre-planning with a funeral home so the arrangements are already in place.
You can certainly mention your general wishes in your will as well, but don't rely on the will as the only place these instructions exist.
Additional consideration: Some people include very specific and expensive funeral requirements in their wills. Even if the family finds these instructions in time, they may not have immediate access to funds to pay for elaborate arrangements. If you have specific wishes that require funding, consider setting aside money specifically for funeral expenses or prepaying arrangements.
Other Items to Keep Out of Your Will
While we're on the subject, let me mention a few other things that don't belong in your will:
Digital assets with terms of service agreements. Your social media accounts, email, cloud storage - these are often controlled by the service provider's terms of service, not by your will. You need separate arrangements for digital asset access.
Conditional gifts that are illegal or unenforceable. You can't use your will to require someone to get divorced, change their religion, or do something illegal to inherit. Courts won't enforce these provisions.
Business interests with operating agreements. If you own part of an LLC or partnership, the operating agreement or partnership agreement may control what happens to your interest when you die, regardless of what your will says.
What This Means for Your Estate Plan
So let's talk about what you should do with this information.
First, understand that estate planning is more than just writing a will. A comprehensive estate plan includes your will, but it also includes beneficiary designations, trust documents, powers of attorney, healthcare directives, and coordination among all these documents.
Second, review your beneficiary designations now. Pull out your retirement account statements, life insurance policies, and any other accounts with named beneficiaries. Make sure they reflect your current wishes. This is especially important if you've had major life changes - marriage, divorce, births, deaths - since you last updated them.
Third, if you have jointly owned property, make sure you understand how ownership is structured. If the current ownership structure doesn't match your estate planning goals, you may need to change it.
Fourth, if you created a living trust, verify that your assets are actually in the trust. A trust doesn't help you if you never funded it. And make sure your will and trust work together rather than contradicting each other.
Fifth, create a separate document with your funeral wishes and make sure your family knows where to find it.
Why Professional Estate Planning Matters
Here in North Carolina, you can create a will on your own - there are plenty of online services and form books available. But quite candidly, this is one area where professional guidance really matters.
An experienced estate planning attorney doesn't just help you write a will. We help you create a comprehensive plan that coordinates all your assets, understands which planning tools to use for which assets, and makes sure nothing falls through the cracks.
We see the problems that arise when people try to control assets through their will that should be handled differently. We've seen the family disputes that happen when a will contradicts a beneficiary designation. We've helped families navigate the confusion when someone's estate plan wasn't properly coordinated.
We Can Help You Review Your Plan
At the Walls Law Group, we help families throughout the great state of North Carolina create comprehensive estate plans that actually work the way they're supposed to. We serve clients in Raleigh, Cary, Durham, Chapel Hill, and surrounding areas.
If you've created a will on your own or worked with an attorney in the past, we'd be happy to review your plan to make sure everything is properly coordinated. We can check your beneficiary designations, review how your property is titled, make sure your will and any trusts work together, and identify any gaps in your planning.
If we can be of assistance to you, please reach out to us at 919-647-9599 or visit our Estate Planning page to learn more. We would be happy to schedule a consultation to review your current plan and make sure your estate will be handled the way you intend.
Estate planning isn't just about having documents in place. It's about making sure those documents work together properly to accomplish your goals. And honestly, that's worth getting right.
Disclaimer: This article is for educational purposes only and does not constitute legal advice. The information provided is general in nature and may not apply to your specific situation. Estate planning laws and property ownership rules vary by jurisdiction and individual circumstances. Every person's estate planning needs are unique, and proper legal planning requires consideration of your particular facts and assets. For specific legal guidance regarding wills, beneficiary designations, trusts, or estate planning in North Carolina, please contact an experienced estate planning attorney. The Walls Law Group is available to discuss your individual circumstances and provide personalized legal counsel. Contact us at 919-647-9599 or visit www.wallslawnc.com to schedule a consultation.
