Will-writing Do’s and Don’ts
At one time, wills could get a bit nasty. There were no guidelines, so people could say whatever they wanted and get away with it. Today, wills use standard language, but you can still get your wishes across by inserting special provisions. Here are a few options to discuss with your attorney.
Prevent contesting of the will. If you’re concerned your will may be contested, you can include an anticontest — also called noncontest — provision. It states that if an heir contests the will and loses, he automatically forfeits any bequest made to him.
Disinherit a child. You have no legal obligation to leave something to a child, even if the child is a minor. But you should word your wishes to show the omission is intentional. Make sure you name all your children in your will, whether you bequeath them anything or not. Some states will interpret your silence on a child as intent to give them an equal share.
On the other hand, be careful about omitting children unintentionally. For example, you may want to include a provision for future children if that’s a possibility.
Make a conditional bequest. You can attach a condition to any bequest as long as it is legal, not against public policy, and possible to carry out. You should always name a backup beneficiary in case your heir refuses to meet the condition or the court disallows it.
Some of the more common bequest conditions include:
- discouraging heirs from getting married or encouraging them to get a divorce. The divorce provision is against public policy and not enforceable. The court may uphold the marriage restriction depending on whether it is a total or partial ban.
- prohibiting an heir from converting to another religion or from bringing up his children in another religion.
- insisting on character improvement. You can require your heir to stop a bad habit or addiction to obtain his inheritance.
- requiring an heir to dress a certain way, go into a designated profession, keep a surname, or avoid talking to a specific family member.
Conditional bequests need to be well-thought-out and explained in detail, or you risk having them overturned by the courts. Make sure you discuss your wishes thoroughly with an attorney and understand exactly what you can and cannot include.
Here are some things you should not try to do in your will.
Disinherit your spouse. No matter how much you may want to, you cannot write your spouse out of your will. Most states give spouses the right to a share of the estate regardless of what your will says.
Donate your entire estate to charity. Although most states allow you to do this, some states limit the amount. And if you’re married, you need to consider where you live. Most states won’t allow it if you have a spouse.
Bequeath possessions to pets. A beneficiary must be a person or legal entity who can appear in court and accept a bequest. Therefore, you cannot make a bequest to an animal. Instead, make a conditional request giving someone you trust a specified amount of money if they agree to take care of your beloved pet.
© FCA Publishing
