Wills are legal documents that follow the basic tenants of contract law.
Accordingly, all wills have to follow the rules and laws that govern the probate process.
Because of this, there are several things that you cannot (and should not) put into your Virginia will.
In this article, we’ll quickly explore nine elements that can either complicate your will, weaken it, or render it entirely invalid.
However, note that there is a difference between things you can’t put in your will and things that you shouldn’t put in your will.
While we’ve organized this article into two sections after this distinction, it’s still wise to speak with an attorney before signing your will, as the difference isn’t quite as black and white as it may seem at first.
Things You Can’t Put in Your Will
As we noted above, wills are similar to contracts and must follow certain Virginia-specific rules and regulations.
While some of these rules are more common sense than legally complex (such as the requirement that you sign your will), it’s still important to remember these rules when drafting your will.
If your will fails to follow Virginia’s rules, a judge may rule your will invalid during the probate process.
For this reason, there are several things that you simply can’t put in your will, usually because doing so would break the basic rules surrounding wills.
We’ll outline some of the most common below, but remember that any deviation from the rules surrounding wills will only make the probate process more difficult for your loved ones.
1) Articles about “Escaping Probate”
“Probate” refers to the process that an estate passes through once the owner of the estate passes away.
There is no way to escape the probate process.
After you die, your estate must go through the probate process in order to pass on to your loved ones:
- If you have a will, then “probate” involves carrying out the wishes outlined in the will.
- If you died without a will, probate refers to the “intestate succession” process outlined in the Virginia Code.
Importantly, the probate process is how you will pay your final taxes on your estate after your death.
If you would like for a section of your estate to avoid the probate process, it’s often wise to instead place those items or assets into a trust. A lawyer can help you implement strategies to simplify the probate process.
2) A Section Leaving “Unowned” or “Jointly Owned” Property to Specific People
As you might imagine, one of the main purposes of a will is to leave certain parts of your estate to the people you’d like to inherit this property.
However, your will cannot pass on property that you do not own.
While this may seem obvious, the legal side of things is a bit more confusing.
For example, you cannot leave property in a trust to specific people, because, technically speaking, you no longer “own” that property.
Similarly, life insurance policies, pensions, retirement accounts, and other “pay-on-death” accounts are also exempt from the provisions in your will.
The beneficiaries for such accounts are instead designated in the plans for the accounts themselves.
Similarly, any jointly owned property (such as if you own a house or share a bank account with your spouse), is also exempt from the terms in your will.
This is because such property will automatically transfer to the surviving owner, and will no longer be a part of your estate.
3) Your Digital Estate
In our increasingly digital world, it’s common for people to own significant “virtual” property such as music and game libraries and other high-value digital accounts.
However, such online property is often subject to the terms of service for each individual account.
As a common example, Apple has a clause in it’s user agreement that reads:
D. No Right of Survivorship
Unless otherwise required by law, You agree that your Account is non-transferable and that any rights to your Apple ID or Content within your Account terminate upon your death. Upon receipt of a copy of a death certificate your Account may be terminated and all Content within your Account deleted.Apple iCloud Agreement
Basically, by agreeing to the iCloud user agreement, you agree that your account is “non-transferable.”
This means that you cannot pass your account on to a loved one after you die.
Articles such as the iCloud example above are common in most online accounts, and such articles place these accounts outside of your estate upon your death (i.e. you can’t write it into your will).
However, intellectual property, such as your own website, is usually counted as part of your estate, and can be passed on through a will (provided no other contracts or agreements prohibit such a transfer).
4) A Section that Leaves Gifts to an Animal
In Virginia (as in most states), pets are property.
You cannot leave gifts and other forms of property to your pets, as they cannot legally “own” property.
If you want to take care of your pet after your passing, you should look into making a Virginia pet trust.
5) Any Section or Article that Involves Illegal Property or Requests
While this may sound obvious, you cannot pass on any items that you gained through illicit activity, as you don’t technically “own” that property in the eyes of the law.
Similarly, making any illegal requests in your will is also a generally bad idea.
Things You Shouldn’t Put in Your Will
On top of the things that you can’t put into your Virginia will, there are also several things that you shouldn’t include for purely practical reasons.
In most cases, your lawyer can help you decide if you should include these sections in your will, as most will depend on the specifics of your case.
6) Funeral Instructions
Despite what you may see in movies, it’s generally a bad idea to leave funeral instructions in your will.
Your loved ones often won’t find your will until days or weeks after you’ve passed, and by then your funeral may already be over.
Because of this, it’s often a good idea to simply state your funeral wishes to your loved ones while you’re still alive.
7) Arrangements for the Care of Loved Ones
If you’re the primary caregiver for a disabled or elderly individual, you may want to include arrangements for their care in your will.
While such arrangements are technically allowed, it’s still not really a good idea to include these in your will.
Instead, most attorneys will recommend that you establish trusts (such as a special needs trust) that can more appropriately address your loved one’s needs.
8) Sections that Outline Your Wishes
While many people choose to include wishes in their wills, it’s important to note that wishes are not legally binding.
For example, if you’re passing on your pizza business to your son, you could include a note that says, “I hope you keep the restaurant in the family after I pass,” but such a wish would not be legally binding.
Often, people instead choose to attach a “letter of wishes” to the end of the will which outlines their basic intentions for what your loved ones should do with the estate.
Since these wishes aren’t legally binding, such a letter can add a more personal touch to your will, and can serve to direct your loved ones to your actual last wishes.
9) Conditional Statements
A conditional statement is a statement or rule that relies on some specific trigger.
Just like wishes, conditions are not recognized by Virginia law, and should generally be avoided in wills.
For example, the statement “I leave the rest of my estate to Marie, provided she attends XYZ college” would not be legally binding, as it is based on the “condition” of attending a specific college.
If you must make such a condition, it might be a good idea to look into a trust instead.
Wills are legal documents that must follow specific rules under Virginia law.
If you fail to follow all of these Virginia-specific rules, a judge may throw out sections of your will, or even void the will in its entirety.
For this reason, it’s highly recommended that you at least speak with a Virginia attorney about your will before you sign it.