What you should never put in your will, according to legal experts

Knowing what you should never put in your will is just as important as knowing what you should include. There are lots of important reasons you should write a will when you become a parent, but you might need a legal expert to explain to you how to write a will so you don't end up including something that could later be problematic for your loved ones. 

No-one likes to think about what will happen when they die, but it can help ease the burden on family members you leave behind if you prepare. Having a will in place means the right people will inherit your money, property and belongings when you die. If you die without a will – which is called dying intestate – the law will determine who should deal with your estate and who gets what (which might not be who you would have wanted).

Sam Hutchinson, managing director at Peak Wills and Estate Planning, says: “You can include whatever you want within your will as long as you own it at the time of your death. The main problems occur when someone doesn't have one. Funeral wishes and provisions for pets are often included within the legal documents but don't need to be as these can be expressed verbally during your lifetime or through a memorandum of wishes.”

Remember that a will becomes a public document once it has gone through probate – so think twice before including any negative comments about excluded family members.

What you shouldn't include in your will

1. Anything you own with someone else

Whether it's a joint account, house or other asset, if you own something with somebody else, then you shouldn't include it in your will. These are instead subject to the rule of 'survivorship'.

“Jointly owned assets automatically pass to the person you own them jointly with so reference within the will is pointless,” says wills expert Sam Hutchinson, “It is, however, vital to understand what you own, how you own it and how it will be distributed on your demise.”

If you own a property as ‘joint tenants’, survivorship means your share will pass to the other owner when you die. You can only leave your share of a jointly owned property to whoever you want if you own the property as ‘tenants in common’.

If you have a joint bank account with someone else, when one person dies the money in the account will automatically pass to the surviving account holder. This happens automatically, regardless of what the will says, or the laws of intestacy, and there’s no need for probate. However, the surviving account holder should tell the bank the other person has died.

2. Funeral arrangements

Funeral arrangements are often made before a will has been retrieved so your family might not see the will in time. Even if your loved ones do read your will in time, funeral wishes are not legally binding on the executors of a will.

Kirsty Armstrong, solicitor at legal firm SAS Daniels, said: “It may be a person has very strong wishes between cremation and burial but going into detail isn’t advisable. It is much more sensible to put any detailed wishes in a corresponding letter or memorandum of wishes.”

It is also a good idea to think about how the funeral will be paid for. Usually, the funeral will take place long before probate is sorted out so your family will need to pay for it somehow, even if they can recoup funds from your estate later on. A prepaid funeral plan is one option - although these don’t always offer good value. Another option is a joint account with a trusted family member, on the proviso that the money is to be used for your funeral expenses.

3. Conditions on gifts

A ‘conditional gift’ is one which the recipient will only receive if a certain condition is met. For example, you might want a grandchild to only receive money if they graduate from university.

Conditions can be difficult – or unfair – to enforce. For example, your grandchild may drop out of university because they can’t afford it. Conditions can also be misunderstood or misinterpreted. If you do include conditions, you would also need to specify what would happen to the money or item if the condition wasn’t met.

A solicitor can advise you if a conditional gift is a good idea and any alternatives that might be easier for your loved ones to administer once you are gone. 

4. Details of specific bank accounts

It's best not to include specific bank account information in your will, as these things can easily change after you've made your will and before you pass away. 

John Roberts, partner at Austin Lafferty Solicitors, agrees:"Don't mention things that might not be there when you die. The classic is, ‘I bequeath to XYZ the funds in my bank account number 1234 in the Bank of Scotland.’

“That money may be needed for any range of causes between making the will and dying, so not only it would be an empty bequest, it may come over as thoughtless or even a calculated insult." 

5. Pension plans and life insurance policies

Pensions and life insurance policies normally require the holder to appoint a beneficiary of the plan when you take it out. That means this person will automatically receive the money or assets from the plan when you pass away, so you don't need to include these in your will. 

Important terminology explained

• Memorandum of wishes: also called a letter of wishes. This is a document that accompanies your will where you can provide further information about your wishes to the executors of your will. But unlike a will, it is not legally binding.
• Probate: This is the process of dealing with a person's money, property and belongings when they die. 
• Dying intestate: This is what it's called if you die without a will.
• Executor of a will: An executor of a will is the person chosen to carry out the wishes stated in a person's will
• Beneficiary of a will: The beneficiary of a will is someone who will benefit from the will, either by being given some money or another gift, and is different to an executor. An executor can also be a beneficiary if that is what is requested in the will.

Who should never be named as beneficiary in a will?

While you can choose who you want to leave your money or possessions to after you die, there are some options that are best avoided. 

Don’t name your pet as a beneficiary in your will - it is not legally possible to pass money or assets on to an animal. So if you want to remember your pooch in your will, your best bet might be to leave a donation to an animal charity instead.

You should also think carefully before naming a person with special needs as a beneficiary in your will. If they are receiving benefits, an inheritance could impact the money they receive from the government. This is a scenario where setting up a trust might be best.

Neil Rayner, head of advice at financial advisor True Potential, said: "When selecting beneficiaries, be cautious about naming minors, as it can lead to complications. Minors are unable to manage assets until they're 18. To address this, consider establishing trusts to oversee their inheritances until they enter adulthood.”

It can also be risky to name spouses or partners of family members; for example a son-in-law or daughter-in-law. If you do wish to leave a specific item or amount of money to be left to them then it might be better to make this known in a letter of wishes and, depending on the circumstances at the time of death, it can be determined whether this would still be what was wanted.

4 things that can invalidate your will 

It's important to know what can invalidate your will, so it can be avoided. Your will might be invalid if:

• You were not of ‘sound mind’ when you made it
• You made the will as a result of ‘undue pressure’ from a third party
• The will was not witnessed by two independent witnesses
• A beneficiary named in the will also acted as a witness to the will
• You move abroad and make another will in that country

It’s also important to understand that in England and Wales, when you get married any will you previously put in place automatically becomes void unless it makes specific reference to your intended marriage.

You’ll need to make a new will “in contemplation” of your marriage or make a new will after you get married. If you don’t, the law will decide who inherits from you after you die - in short, your spouse will inherit everything if your estate is worth less than £270,000, and any children you have from a previous relationship may get nothing at all.

In addition to sorting out your will, it's worth reminding yourself of the reasons to get life insurance in place too, for peace of mind for your family should the worst happen.