I once worked with a family in Brooklyn whose father had passed away suddenly. Weeks after the funeral, they located his will. Inside, among the bequests to his children, was a deeply personal, two-page instruction on his burial wishes—a specific plot, a certain type of casket, even the music he wanted played. The problem was, he had already been cremated, according to the wishes he’d expressed in conversation years earlier. The will came too late.
This family’s pain was compounded by the discovery that his final written wishes went unfulfilled. Their story illustrates a fundamental truth I have seen play out many times in my practice: a Last Will and Testament is a powerful legal instrument, but it is not all-powerful. Its purpose is specific—to direct the transfer of your probate assets. Including instructions or assets that fall outside that purpose can cause confusion, conflict, and unintended consequences.
Stewardship. That is the goal. A will should be a clear, unambiguous document that protects a legacy, not a catch-all that complicates it. Here is what we advise clients to leave out.
Instructions for the Immediate Aftermath
A will is not a first-response document. Before it can be acted upon, it must be located, delivered to an attorney, and filed with the Surrogate’s Court for probate. This process takes weeks, sometimes months. Any instructions needed in the first few days after your passing should be left elsewhere.
1. Funeral and Burial Plans. As the Brooklyn family discovered, by the time your will is formally read and validated, your funeral will likely be over. Your wishes for burial, cremation, or memorial services are important, but they belong in a separate document—a letter of instruction or a formal pre-need arrangement with a funeral home. Share this document with your chosen executor and close family members so they know where to find it immediately.
2. Guardianship for Pets. In New York, pets are considered personal property. While you can bequeath your pet to someone in your will, it doesn’t provide for their immediate care. A more deliberate approach is a Pet Trust. This allows you to name a caregiver and set aside funds for the pet’s expenses, effective immediately upon your death or incapacity. It ensures a seamless transition of care without waiting for the probate process.
Assets That Pass by Operation of Law
This is the single most common point of confusion for the families I represent. Many assume their will controls the distribution of everything they own. It doesn’t. A significant portion of a person’s wealth is often held in assets that have their own built-in instructions for transfer, which legally supersede the terms of a will.
These assets pass to a designated person automatically—by “operation of law.” Including them in your will is, at best, redundant. At worst, it creates a conflict that can lead to litigation among your heirs.
Key examples include:
- Life Insurance Policies and Retirement Accounts. Your IRA, 401(k), 403(b), and life insurance policies all have beneficiary designation forms. The person you name on that form will receive the asset, regardless of what your will says. I’ve seen wills that state “my IRA shall be split between my three children,” while the IRA beneficiary form names only one. The form wins.
- Jointly Owned Property. Real estate or bank accounts owned as “joint tenants with right of survivorship” (JTWROS) automatically pass to the surviving joint owner. Your will has no authority over this property.
- Payable-on-Death (POD) and Transfer-on-Death (TOD) Accounts. These are bank and brokerage accounts where you have named a beneficiary to inherit the account directly, avoiding probate.
The law calls these assets “testamentary substitutes.” New York’s Estates, Powers and Trusts Law (EPTL) § 5-1.1-A, for example, lists joint bank accounts and retirement benefits as property considered part of an estate when calculating a surviving spouse’s elective share. This underscores a critical point: the law already sees these assets as distinct from your probate estate, with their own rules for distribution. An intentional estate plan ensures your beneficiary designations and your will are telling the same story.
Provisions the Court Will Not Enforce
Finally, a will cannot be used to make requests that are illegal, against public policy, or otherwise unenforceable by the Surrogate’s Court. Attempting to do so simply creates an opening for a will contest, draining estate resources and creating fractures within the family.
Conditional Gifts. While some conditions are permissible, the court will strike down any that are deemed to violate public policy. For example, a bequest that requires a beneficiary to divorce their spouse, change their religion, or never marry would be voided. The law supports the right to transfer property but not the right to control people’s lives from beyond the grave in a way that society finds harmful.
Illegal Acts. It may seem obvious, but a will cannot direct an executor or beneficiary to commit a crime. Any such provision is void on its face.
“Hopes” and “Wishes.” Using precatory language—words like “I hope,” “I wish,” or “I request”—instead of clear, directive language like “I give” or “I direct” can render a provision unenforceable. A will is a document of command, not suggestion.
A properly drafted will is the foundation of a generational legacy. It provides clarity and direction. But that clarity comes from understanding not only what it should do, but also what it cannot. True stewardship is about using the right tool for the right job—a will for probate assets, trusts for complex control, and beneficiary designations for contractual transfers.
If you are unsure whether your current will and asset titling work in concert, the first step is a review. We can schedule an audit of your existing documents and beneficiary designations to ensure your plan functions as a whole, leaving a legacy of clarity, not conflict.
