A client once came into my office with a will he’d drafted himself. He was proud of its detail, especially the clause leaving a specific brokerage account to his daughter from a first marriage. The problem? The account was designated “Transfer-on-Death” (TOD) to his current wife. He believed the will—his most recent document—would override the old TOD designation. He was mistaken.
In New York, this conflict sends a family to Surrogate’s Court. The will says one thing; the account’s title says another. It is a common and costly misunderstanding to believe a will controls every asset you own. It does not.
A will is a foundational document, but its power is limited to assets that pass through probate. Many valuable assets are designed to bypass probate entirely, passing directly to a named person by law or contract. Including them in your will is redundant at best. At worst, it creates the kind of conflict your family will pay lawyers to resolve.
Assets That Pass Outside Your Will
Your will directs the distribution of your probate assets only. Non-probate assets transfer according to their title or beneficiary designation—which is a contract between you and a financial institution. Your will cannot override a contract.
Here are the most common assets that should not be managed through your will:
- Life Insurance Policies and Retirement Accounts: Your 401(k), IRA, and life insurance policies all have beneficiary designation forms. The person you name on that form receives the asset upon your death. Period. The will has no say in the matter. I have seen families devastated to learn that an ex-spouse, never removed from a decade-old 401(k) beneficiary form, received the entire account despite the will leaving everything to the current spouse and children.
- Jointly Owned Property: In New York, real estate is often held as “joint tenants with rights of survivorship.” When one owner dies, the property automatically belongs to the surviving owner. It does not matter if your will leaves your “half” of the Brooklyn brownstone to your son; if you own it jointly with your spouse, it becomes entirely theirs. The same principle applies to joint bank accounts.
- Payable-on-Death (POD) or Transfer-on-Death (TOD) Accounts: These are bank or brokerage accounts where you have named a specific person to inherit the contents. Like a beneficiary designation, this is a direct instruction that bypasses probate and your will.
- Assets Held in a Trust: A properly funded trust is a separate legal entity. The assets within it are governed by the terms of the trust document, not the will. A primary reason we establish trusts for clients is precisely to avoid the probate process that wills require.
Provisions a Will Cannot Enforce
A will is not a place for unenforceable demands. The law places limits on “testamentary freedom”—your ability to give away property as you see fit.
One significant limitation involves your spouse. You cannot use a will to completely disinherit a surviving spouse. Under New York’s Estates, Powers and Trusts Law § 5-1.1-A, a spouse has a “right of election” to claim a share of your estate—roughly one-third—regardless of what your will says. Any attempt to leave them less can be challenged and overturned in court.
Courts also reject “conditional gifts” that violate public policy. You cannot, for example, make an inheritance contingent on the beneficiary marrying someone of a certain faith or divorcing their current spouse. While some reasonable conditions might be upheld, those that interfere with personal freedoms are often struck down, with the beneficiary receiving the gift free of the invalid condition.
What About Personal Wishes?
A will transfers property. It is not the place for personal sentiments or legally unenforceable instructions. For instance, while you can state your wishes for your funeral, your will is often not located and read until weeks after the service. These instructions are better left in a separate letter shared with your executor and close family.
The same goes for explaining why you distributed your property in a certain way. Including this language in the will itself can invite a will contest by giving a disgruntled heir something to argue about. Stewardship is about the orderly and intentional transfer of your legacy—not creating a final forum for family grievances.
Effective planning begins with a clear inventory. Before meeting with your attorney, list your major assets—your home, accounts, retirement funds, and insurance policies. For each one, find out exactly how it is titled and who is the named beneficiary. This document is the starting point for a deliberate plan that works as you intend, honoring your wishes without creating conflict for the people you leave behind.
