A few years ago, a new client came to our Manhattan office with his mother’s will. He was the sole beneficiary and executor. On paper, it was straightforward. The will clearly stated he was to receive her IRA, which held a significant balance. The problem? The IRA’s beneficiary designation form—filed 15 years earlier—still named his mother’s ex-husband. In the legal dispute that followed, the beneficiary form won. The will was powerless to override it.
My firm sees this situation far too often. A will is a foundational document for legacy stewardship, but it is not a catch-all. Its power is strictly limited to assets that pass through probate. Many of the most valuable assets people own—retirement accounts, life insurance, jointly held property—are designed to bypass probate entirely. Including them in a will creates false expectations and can lead to costly, painful conflicts in New York’s Surrogate’s Court.
An intentional estate plan starts with understanding what a will can—and cannot—do.
Assets That Pass Outside of Probate
The most common error is attempting to use a will to direct assets governed by their own legal structures. These non-probate assets pass directly to a designated person by operation of law or contract.
Putting these in your will is, at best, redundant. At worst, it creates a direct conflict, like the one my client faced. The named beneficiary on an account or deed will almost always supersede the instructions in your will. Your executor has no authority over these assets, as they are not part of the probate estate the will controls.
Here are the primary categories of assets that should not be in your will:
- Retirement Accounts (IRAs, 401(k)s, 403(b)s): These accounts transfer via beneficiary designation forms. The person you name on that form gets the funds, regardless of what your will says.
- Life Insurance Proceeds: The payout from a life insurance policy is a contractual obligation. The proceeds go directly to the beneficiary you named in the policy.
- Property Held in a Trust: Assets titled in the name of a revocable or irrevocable trust are controlled by the trust document, not the will. The trust is a separate legal entity, and its assets are distributed by the successor trustee.
- Jointly Owned Property with Right of Survivorship: In New York, real estate held as a “joint tenancy with right of survivorship” or bank accounts designated as “joint” automatically pass to the surviving owner. The will has no say in the matter.
- Payable-on-Death (POD) or Transfer-on-Death (TOD) Accounts: Bank and brokerage accounts can be set up to transfer automatically to a named beneficiary upon your death. This is another contractual arrangement that bypasses probate.
The probate process, governed by the Surrogate’s Court Procedure Act (SCPA), manages assets titled in your name alone that lack a beneficiary designation. Attempting to force non-probate assets into this process through your will is a fundamental misunderstanding of how these legal tools work.
Provisions That Are Impractical or Unenforceable
Beyond non-probate assets, certain instructions do not belong in a will. Including them can complicate the executor’s job and even invite a will contest from a disgruntled heir.
Funeral and Burial Instructions
This is a practical matter. A will is often not located and read until weeks after a person has passed away—long after funeral arrangements are made. Your executor must petition the Surrogate’s Court to be formally appointed, and that takes time. By then, it is too late.
While you can mention your preferences, they are not legally binding in a will. A better approach is to create a separate letter of instruction and share it with your executor and close family. This makes it far more likely your wishes are known and can be honored.
Conditional Gifts That Violate Public Policy
A will can place conditions on a gift. For instance, you might leave funds in a trust for a grandchild, to be paid out only when they turn 25. This is generally enforceable.
However, courts will not enforce conditions that are illegal or violate public policy. I have seen wills that disinherit a child unless they divorce a spouse, or that make an inheritance conditional on converting to a specific religion. Judges routinely strike down these provisions as improper attempts to control the lives of others from the grave.
Personal Feelings or Explanations
A will is a technical, legal instrument for the disposition of property. It is not the place to explain why you are giving one child more than another, to air old grievances, or to offer life advice. Such language serves no legal purpose.
Worse, it can introduce ambiguity. A sentence meant to soften the blow of an unequal distribution could be misinterpreted by a disappointed beneficiary as evidence of duress or a lack of mental capacity. This can give them an opening to contest the will, leading to protracted and expensive litigation for your estate. Keep the language clean, direct, and focused solely on distributing your assets.
Aligning Your Will With Your Full Legacy
A well-drafted will is a vital tool, but it is only one piece of a larger plan for generational stewardship. It must work in harmony with your trusts, beneficiary designations, and property titling.
If your will and your beneficiary designations conflict, your plan is not integrated. The first step to fixing this is to conduct an audit. Make a list of your major assets—bank accounts, retirement plans, life insurance policies, and real estate. Next to each, note how it is titled and who the named beneficiary is. This exercise often reveals forgotten designations or misalignments. Once you have this inventory, the next step is a review with your counsel to align every account and deed with the goals of your will.
