What You Should Never Put in Your Will: 8 Things That Don’t Belong

Most people think a will handles everything that happens after they die. A will is actually a pretty limited document — and when you stuff the wrong things into it, you create legal headaches, family conflict, and problems your attorney will have to untangle at significant expense to your heirs.

I’m Jerry Taylor, an estate planning attorney with over 30 years of experience. After reviewing thousands of wills — including plenty drafted by other attorneys — I keep seeing the same mistakes. These eight things do not belong in a will, and putting them there ranges from pointless to actively harmful.

1. Property That Already Has a Beneficiary Designation

This is the most common mistake I see. Clients list their life insurance policies, retirement accounts (IRAs, 401(k)s), and payable-on-death bank accounts in their will, thinking it provides extra clarity. It doesn’t — it creates confusion.

Assets with beneficiary designations pass directly to the named beneficiary, regardless of what your will says. If your will says “my IRA goes to my daughter” but the IRA beneficiary form names your ex-spouse, your ex-spouse gets the IRA. The beneficiary form wins every time.

The fix: Update beneficiary designations directly with each financial institution. Review them every time your family situation changes — marriage, divorce, birth of a child, death of a beneficiary.

2. Property Held in a Trust

If you’ve set up a revocable living trust and transferred property into it, that property is governed by the trust terms — not your will. Listing trust assets in your will creates conflicting instructions and can trigger exactly the probate process the trust was designed to avoid.

If you want to change how trust assets are distributed, amend the trust — don’t try to override it through your will. The trust controls.

3. Jointly Owned Property

Property held in joint tenancy with right of survivorship (JTWROS) passes automatically to the surviving owner when you die. Your will has no power to redirect it.

I’ve seen cases where someone’s will leaves their house to their children, but the house is titled jointly with a new spouse. The spouse gets the house — the will is irrelevant for that asset.

If you want jointly owned property to go somewhere other than the surviving co-owner, you need to change how it’s titled before you die. Writing a different instruction in your will accomplishes nothing. Talk to an estate planning attorney before making changes to property titles.

4. Conditional Gifts That Try to Control Behavior

I’ve seen wills that include conditions like “my son inherits $100,000 only if he divorces his wife” or “my granddaughter gets the house only if she graduates college by age 25.” These conditions are often unenforceable, create litigation, and damage family relationships.

Alabama courts will generally enforce reasonable conditions, but conditions that violate public policy (encouraging divorce, requiring someone to change their religion, racial restrictions) are void. Even enforceable conditions create monitoring problems — who decides if the condition was met? What happens if there’s a dispute?

The better approach: If you genuinely need to attach conditions to an inheritance, use a trust. A trust gives your trustee clear authority and specific guidelines for deciding when distributions are appropriate — and there’s no ambiguity about who makes the call. This is one of the biggest advantages of a properly structured trust over a will.

5. Funeral and Burial Instructions

By the time anyone reads your will, your funeral is probably already over. Wills often aren’t located and reviewed until days or weeks after death. Your burial preferences need to be communicated now, not discovered later.

Write a separate letter of instruction and give copies to your family, your personal representative, and your attorney. If you have strong preferences about cremation vs. burial, organ donation, or funeral arrangements, the people who will be making those decisions need to know now — not whenever someone gets around to opening your will.

6. Digital Assets Without Clear Access Instructions

Leaving your “digital accounts” in your will without providing passwords or access instructions is like leaving someone a locked safe without the combination. And listing passwords directly in a will is a terrible idea — wills become public record during probate, making your passwords available to anyone.

Instead: Create a separate digital assets inventory — email accounts, social media, cryptocurrency, online banking, subscription services — with access credentials stored securely. A password manager, a sealed envelope with your attorney, or a digital vault all work. Your estate plan should reference the inventory without including the actual credentials in any document that becomes public record.

7. Business Succession Plans

If you own a business — an LLC, partnership, or S-corp — your will is not the place to spell out succession plans. Business succession involves operating agreements, buy-sell agreements, valuation methods, funding mechanisms, and tax planning that go far beyond what a will can handle.

Worse, putting business instructions in your will means they go through probate, potentially freezing business operations for months while the court processes the estate.

Business succession belongs in your operating agreement (for LLCs), a buy-sell agreement, and a succession plan coordinated with your asset protection strategy. These documents need to work together — your estate plan, your business documents, and your tax structure should all be pointing in the same direction.

8. Specific Cash Amounts That May Not Exist

Leaving “$50,000 to my nephew” sounds straightforward, but what if your estate doesn’t have $50,000 in cash when you die? This creates an “ademption” or “abatement” problem — the estate may have to sell assets to generate cash, potentially at a bad time, to fulfill specific dollar amounts.

I’ve seen cases where a will left cash gifts totaling more than the estate’s liquid assets, forcing the sale of a family home to cover the bequests. That’s almost certainly not what the person intended.

The smarter approach: use percentages instead of fixed dollar amounts. “10% of my estate to my nephew” scales with whatever your estate is actually worth at death. Or better yet, use a trust that gives the trustee discretion about timing and amounts — so distributions can happen when it makes financial sense rather than being forced at the worst possible moment.

What SHOULD Be in Your Will

A will works best as a focused document that handles:

• Guardian nominations for minor children — this can ONLY be done in a will
• A “pour-over” provision directing any assets that weren’t transferred to your trust during your lifetime
• Personal property distribution — sentimental items, collections, household goods
• Naming your personal representative (executor) to handle probate if needed

Think of the will as your safety net — not your primary tool. The trust, beneficiary designations, and joint ownership do the actual work of transferring assets efficiently.

Why a Will Alone Isn’t an Estate Plan

If you only have a will, everything in it goes through Alabama probate — a public process that takes 6-18 months and costs thousands. The better approach is a comprehensive estate plan that uses multiple tools:

• A revocable living trust for property and major assets
• Updated beneficiary designations on all financial accounts
• Powers of attorney for financial and healthcare decisions
• A will as a backstop for anything the trust doesn’t cover

This approach keeps most of your estate out of probate, maintains your privacy, and gives your family clear, immediate access to their inheritance.

Frequently Asked Questions

What happens if I put something in my will that contradicts a beneficiary designation?

The beneficiary designation wins. Account beneficiary forms, trust documents, and joint ownership arrangements all override will provisions. This is one of the most common sources of estate planning disputes.

Can I leave everything in my will and skip the trust?

You can, but everything will go through probate. In Alabama, that means 6-18 months of court proceedings, public exposure of your financial details, and costs of 3-5% of your estate value. Learn how to avoid probate with better planning.

What is a family trust and do I need one?

A family trust (typically a revocable living trust) is a legal document that holds your assets and distributes them to your beneficiaries when you die — without probate. If you own property, have minor children, or want to keep your estate private, you likely need one. It’s not just for wealthy families.

Should I put my house in a trust or leave it in my will?

A trust is almost always better for real property. Alabama does not allow transfer on death deeds, so a trust is the most effective way to pass real estate without probate. A house left in a will goes through probate court.

Can I write my own will in Alabama?

Alabama does not recognize unwitnessed holographic wills. Unlike some states, a handwritten will in Alabama must still be signed by the testator and witnessed by at least two people present at the signing — the same requirements as a typed will. A handwritten will with no witnesses has no legal effect in Alabama. Beyond the witness requirement, DIY wills frequently contain ambiguities, miss critical provisions, and create more problems than they solve. The cost of a professionally drafted will is a fraction of the cost of litigating a poorly written one.

Need a comprehensive estate plan — not just a will? I’m Jerry Taylor, an estate planning attorney in Fairhope serving clients in Baldwin County, Mobile and Mobile County, the Florida Panhandle including Pensacola, and across Alabama. Call 251-517-7507 for a consultation.