A Last Will & Testament is one of the foundational documents of estate planning. Every person in our practice areas (Westchester County and Putnam County) should have a will in place before their passing. This will help ensure that your assets and debts are handled in the manner you deem best. However, this does not mean that every single aspect of an estate plan should be contained in a will. There are certain provisions that New York law will invalidate if they are present, and some provisions are simply better served in another document.
Do Not Try To Control Others
Perhaps the most strongly proscribed item one can place in a will is any kind of condition on inheritance. The most stringent of these would be making inheritance conditional on marrying someone or on not challenging any aspect of the will. The latter in particular are known as in terrorem clauses, and they are generally held to be invalid in New York because they are against public policy. That is, they shock the conscience of the public. Generally, any attempt to control behavior from beyond the grave is considered inappropriate in New York.
Another provision that is frowned upon by New York courts is one attempting to dispose of property that does not pass via will, such as a life insurance policy. Such instruments pass to beneficiaries via a preference stated in the document – that is, the policyholder will name a beneficiary who receives the proceeds of the policy when the holder passes away. Attempting to circumvent that by naming a beneficiary in one’s will only creates confusion.
Timing Can Invalidate Some Provisions
In addition to these dictates, which are generally against public policy (and thus unenforceable), other bequests may be problematic simply because of timing. In general, a will is not read by an executor for some time after a person’s passing – as a result, placing instructions for one’s funeral in their will is not a good idea. It is very possible to have a separate document detailing a person’s wishes for their own personal send-off.
In the same vein, some people attempt to bequeath or assign a debt to one or more beneficiaries. Not only will timing likely invalidate this, but debts are usually addressed via other means, such as financial planning. Tying the assumption of a debt to receipt of an inheritance is almost always problematic, given that it is not in a person’s best interests to voluntarily assume the debts of another.
Contact A Pleasantville Estate Planning Attorney
Planning one’s estate almost always begins with a Last Will & Testament – but it is generally easier to have a Pleasantville estate planning attorney at your side to help smooth out the process. Meyer & Spencer, PC can ensure that your will contains nothing that it should not. Call or text our office today at (914) 741-2288 to schedule a consultation.
Source:
law.cornell.edu/wex/in_terrorem_clause
