A Last Will and Testament is a key part of an estate plan, but not every instruction should go in it. Many people try to use their wills for things that are better handled with beneficiary designations, trusts, or other documents. Sometimes, including the wrong details in a will can cause confusion or make a gift ineffective. In other cases, a will cannot change how an asset is passed on by law. At Bernard Law P.C., we believe a good estate plan means knowing what to put in a will and what to address in other ways.
New York has specific rules for making a valid will under Estates, Powers and Trusts Law § 3-2.1. A well-prepared will lets you name an executor, decide who gets your probate property, choose guardians for minor children, and set up testamentary trusts. Still, a will is just one part of your estate plan. Here are ten things we usually suggest handling outside the will or with extra planning.
1. Funeral And Burial Instructions
Your wishes about burial, cremation, memorial services, or similar matters should not be listed only in your will. The main issue is timing. Families often have to make funeral decisions before they find or read the will.
New York Public Health Law § 4201 allows a person to appoint an agent to control the disposition of remains and provide specific directions. We generally prefer addressing these wishes directly with the appropriate people and documents so that family members can locate the instructions immediately after death.
2. Passwords And Sensitive Account Information
You should not put passwords, PIN numbers, combinations, or other private information in your will. Wills can become part of a Surrogate’s Court case, so they are not a safe place for sensitive details.
We recommend that clients keep a secure, separate list of digital accounts, financial details, and access instructions. This is important because passwords often change, while a will might stay the same for many years.
3. Assets With A Named Beneficiary
Life insurance, retirement accounts, annuities, and some other assets usually go to the person named as beneficiary, not according to the will.
New York EPTL § 13-3.2 recognizes beneficiary designations for various retirement, death benefit, annuity, and insurance arrangements. If your will says that your IRA should pass to one person while the account’s valid beneficiary designation names someone else, the beneficiary designation generally controls.
For this reason, we review beneficiary designations as part of the estate planning process instead of assuming the will controls every asset.
4. Jointly Owned Property With Survivorship Rights
Property owned jointly with survivorship rights ordinarily passes to the surviving owner by operation of law. Trying to give that same property to someone else through a will can create expectations the will cannot fulfill.
This issue commonly arises with bank accounts and real property. Before deciding what a will should say, we first determine exactly how important assets are titled.
5. Property Already Owned By A Living Trust
If an asset has been properly transferred into a revocable living trust, the trust agreement generally governs its disposition rather than the will.
This is why trust funding is so important. The trust document and the ownership of the assets must work together. Simply having both a will and a trust does not mean the estate plan is properly coordinated.
6. Detailed Medical And End-Of-Life Decisions
A will does not become the controlling document while you are alive and unable to make healthcare decisions. Instructions about medical treatment, life-sustaining treatment, and healthcare decision-making belong in appropriate advance directives.
We want these documents available when a medical emergency occurs, not sitting with paperwork intended primarily to operate after death.
7. An Outright Inheritance To A Young Child
We generally do not recommend simply directing substantial assets outright to a minor child without considering how those assets will be managed.
New York’s Estates, Powers and Trusts Law contains provisions governing transfers to minors, including Article 7, Part 6 concerning the Uniform Transfers to Minors Act. For significant inheritances, a trust may provide substantially greater control over who manages the property, when distributions occur, and how funds may be used.
A thoughtfully drafted trust can also prevent a child from receiving a large inheritance outright simply because a particular age has been reached.
8. An Attempt To Completely Disinherit A Spouse Without Legal Planning
A married person should not assume that writing a spouse out of a will necessarily eliminates the spouse’s inheritance rights.
Under New York EPTL § 5-1.1-A, a surviving spouse generally has a statutory right of election. Subject to the statute’s detailed rules, the elective share is generally the greater of $50,000 or one-third of the net estate.
If limiting a spouse’s inheritance is part of an estate planning objective, the issue requires careful legal analysis rather than a simple sentence in a will.
9. Informal Instructions For The Care Of A Pet
We encourage clients to think beyond simply writing, “I leave my dog to my daughter.” Animals require food, veterinary care, housing, and sometimes substantial ongoing expenses. New York EPTL § 7-8.1 expressly permits a trust for the care of a designated domestic or pet animal. A pet trust can provide funds, identify a caregiver, establish standards of care, and provide for remaining trust property after the animal dies.
That offers considerably more protection than an informal request.
10. Complicated Conditions That May Cause Future Conflict
People sometimes want inheritances conditioned upon marriage, employment, education, lifestyle choices, or other personal decisions. New York law permits certain conditions on testamentary gifts, and EPTL § 3-3.5 addresses conditions qualifying dispositions and certain no-contest provisions.
That does not mean every condition is advisable. Complicated or poorly drafted restrictions can create ambiguity, family disputes, and difficult questions for an executor or trustee. When a client wants continuing control over an inheritance, a properly structured trust is often more suitable than attempting to place extensive instructions directly into a simple will.
A good estate plan should make things easier for the people you leave behind. We therefore look at the entire structure of an estate rather than treating the will as the answer to every planning issue. For New Yorkers who also own a home in Florida, that review is especially important because Florida property, homestead rules, trusts, beneficiary designations, and domicile considerations can affect how the overall plan operates.
Frequently Asked Questions About What Should Be Left Out Of A Will
Can My Will Override A Beneficiary Designation?
Generally, no. Assets such as life insurance and many retirement accounts pass according to valid beneficiary designations rather than the instructions contained in a will. New York EPTL § 13-3.2 addresses the rights created by beneficiary designations for several types of retirement and insurance arrangements. This is why we consider the will and beneficiary forms together when reviewing an estate plan. A beautifully drafted will cannot correct an outdated beneficiary designation if the asset passes outside the probate estate.
Should I Put My Funeral Wishes In My Will?
We generally prefer that funeral and disposition instructions also be documented separately and communicated to the appropriate people. Your family may have to make decisions almost immediately after your death, sometimes before anyone reviews the will. New York Public Health Law § 4201 provides a procedure for appointing an agent to control the disposition of remains. Using the proper document can give your family clearer and more readily available direction.
Can I Leave Everything Directly To My Minor Children?
A will can provide for children, but leaving substantial assets outright to minors can create management issues. We frequently use trusts when parents want a responsible adult or institution to manage an inheritance and make distributions for a child’s health, education, support, or other needs. The trust can also continue beyond childhood when receiving the entire inheritance at a young age would not be appropriate.
Can I Leave My Spouse Nothing In My New York Will?
Simply excluding a spouse from the will does not necessarily prevent the spouse from receiving part of the estate. New York EPTL § 5-1.1-A gives a surviving spouse an elective-share right subject to statutory requirements and exceptions. If you are considering an estate plan that treats a spouse differently, we recommend addressing the issue during planning rather than assuming the wording of the will alone determines the result.
Should My Will Contain Instructions For My Pet?
Your will can identify who you would like to care for a pet, but a pet trust may offer greater protection when continuing care and expenses are important. New York EPTL § 7-8.1 recognizes trusts established for designated domestic or pet animals. The trust can provide money for care and establish how those funds should be managed rather than relying entirely on an informal request.
Does My New York Will Control My Florida Home?
Not always, and this is particularly important for snowbirds. Ownership structure, trusts, Florida probate law, and Florida’s constitutional and statutory homestead protections can affect what happens to Florida real estate. Florida Statutes § 732.4015 restricts the devise of homestead in certain circumstances involving a surviving spouse or minor children. We therefore review New York and Florida assets together rather than assuming a New York will resolves every issue involving property in both states.
Review Your Will With Bernard Law P.C.
A will should clearly accomplish what it is legally designed to do, while the rest of your estate plan addresses assets and decisions that belong elsewhere. At Bernard Law P.C., we help clients review wills, trusts, beneficiary designations, incapacity documents, property ownership, and other elements of an estate plan so that the individual pieces work together. For clients who divide their time between New York and Florida, we can also evaluate the additional planning issues that arise when property and legal ties exist in both states.
If you have an existing will or are considering creating an estate plan, we can help you determine whether your documents properly reflect your wishes and whether important matters should be handled outside your will. Bernard Law P.C. is located in Shoreham, New York, and serves clients throughout Suffolk County. Call our Suffolk County estate attorney at Bernard Law P.C. at (631) 378-2500 to schedule a free consultation.
