Will it or won’t it?

Understanding what a will can and can’t do

You should be aware of what a will can’t or shouldn’t do. This is particularly true if you’re drafting your own document without an attorney’s help, since you could unknowingly make a mistake that upends your whole estate plan.

1 What a will can’t do

A will can’t avoid probate, the legal process that typically follows death. In probate, your will becomes a public record and the court supervises the distribution of your estate.

A common way to bypass probate is to create a revocable living trust and then transfer ownership of your real estate, accounts and other property into the trust. You retain control, but upon your death, the person you name as your successor trustee can distribute your property without a court’s involvement, says Matt Palmer, associate product counsel at online legal site LegalZoom.

2 What a will shouldn’t do

Putting conditions in a will is often a bad idea, says Betsy Hannibal, senior legal editor at Nolo, a self-help legal site. Some conditions — such as requiring someone to marry, divorce, or change religions — aren’t legally enforceable because they’re considered contrary to public policy, Hannibal says.

If you want to impose conditions, consider paying for an attorney to set up a trust rather than using a will. You’ll need to appoint a trustee, who may need to be paid from the trust for their services. Also, when the money is in the trust, it can be subject to high trust tax rates.

3 What you may not want to do with a will

Disinheriting a spouse can be extremely hard to do.

In community property states, a spouse generally has a legal right to half of the property acquired during a marriage, regardless of how the property is titled. In common law states, a spouse usually has a right to claim one third to one half of the estate, regardless of what a will says.

A spouse can agree to be disinherited in a prenuptial or postnuptial agreement, or they can “disclaim,” or refuse, an inheritance so that it goes to other heirs. If your spouse is willing to be disinherited, consult an experienced estate planning attorney for help drafting the appropriate documents. If your spouse isn’t willing, you can talk to the attorney about your options, but understand that disinheriting them may not be possible.