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What Should Not be Included in a Will

Updated: December 13, 2022

All last will and testaments will need to go through the probate process, but that does not mean all of your assets do. Those assets that do not need to be included in your will are known as non-probate estate assets.

There are some things that can be in a will, but are better off done with a trust. This includes providing for a dependent with special needs, poor financial management skills, or a pet— you cannot leave assets or property to pets.

Although there are some things you never want to include in your will, with most assets you can choose whether or not to include them in your will based on your situation and preferences. These are any assets that can be converted to the non-probate assets listed below.

Spoken-for Property

Property that shouldn’t be included in your will is any asset that is not owned solely by you or is already spoken for upon your death.

These are the most common examples of this property, although there is considerable overlap between this list and the non-probate assets list.

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  • Property held with rights of survivorship, including community property with rights of survivorship and property held in joint tenancy or tenancy by the entirety. These will automatically go to the co-owner upon your death and can’t be changed by anything you write in your will.
  • Property held in a living trust, which is specifically set up to ease the transfer of your property upon your death and to bypass probate. The beneficiaries of your living trust automatically receive any property held by the trust after you die. This is not true of any testamentary trust created in your will.
  • Payable On Death accounts.
    • Life insurance or annuity proceeds with a named beneficiary goes directly to them following your death.
    • Proceeds from retirement plans, pensions, IRAs, and 401(k)s will pass directly to any beneficiary you name on the forms.
    • Bank accounts with a beneficiary transfer automatically after your death.
    • Property, such as stocks, bonds, real estate, or vehicles, can be designated as transfer-on-death. This allows you to name a beneficiary who will receive the property upon your death.
  • Life estates given to you by others that you have no further control or power over before your death, essentially an irrevocable trust.

Certain Requests or Stipulations

Since the settling of the estate and the probate proceedings occur after the funeral, any specific instructions for the wake, funeral, or burial left in the will may not be available until well after the fact.

While you may include requests and make stipulations on certain gifts in your will, there are some that may be inappropriate.

  • While you can make some gifts conditional for the sake of incentive such as graduating from college or for specific reasons such as to buy a house, you cannot do this to force a beneficiary to do something such as getting divorced, changing religions, or not have a same sex marriage.
  • You cannot stipulate that the gift either be subject to doing something illegal or used for illegal purposes.
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