Limitations of writing a will

On Behalf of | Aug 1, 2022 | Probate and Estate Administration |

One would think that a Texas court would honor all of their wishes in their will, but that’s not necessarily the case. Certain stipulations aren’t valid in a will, but there’s usually a way to make those desires valid.

Probate

There isn’t a way to prevent your will from going through probate. You could, however, deposit assets that you want to keep private or pass on without probate into a trust. Trusts don’t need to go through probate.

Joint ownership

Wills can’t pass on assets that have joint ownership without the other owner’s permission. Another issue to be aware of is if the other owner has debts or goes through a divorce, that asset could be at risk.

Assets with beneficiaries

Certain assets that have beneficiaries don’t need to be in your will because they automatically pass on to the beneficiaries upon your death. Examples of these assets are retirement accounts and life insurance. Assets with “payable on death” or “transfer upon death” designations also automatically pass on to the designated beneficiary.

Conditions for inheritances

Wills can’t state conditions for inheritances. If you want to enforce conditions on the money that your beneficiary receives, then you need to set up a trust. Also, check what types of limitations you can establish with the type of trust. You can usually set a cap on how much a beneficiary can withdraw per year and what they can spend the money on. This helps prevent irresponsible beneficiaries from wasting their inheritances.

SSI and Medicaid

If you want to pass on assets to a loved one who will qualify for SSI or Medicaid, then you should consider setting up a special needs trust for them instead of declaring it in your will. Transferring their assets through your will could interfere with their eligibility for SSI and Medicaid.

Knowing the limitations of writing your will is important to ensure that you draft a document that truly meets your needs. You could supplement your will with other estate planning tools if appropriate.