What the WillMaker Will Cannot Do

WillMaker allows you to produce a valid and effective will designed to meet most needs. But there are some restrictions built into the program. Some of the restrictions are designed to prevent you from writing in conditions that may not be legally valid. Others are intended to keep the program simple and easy to use.

Here is a list of features that the WillMaker will does not provide. If these are things you want your will to do, see a laywer for help.

(And here is some information about What the WillMaker Will CAN Do.)

Make Bequests With Conditions

With WillMaker's will, you cannot make a bequest that will take effect only if a certain condition occurs—an "if, and or but," such as "$5,000 to John if he stops smoking." Such conditional bequests are confusing and usually require someone to oversee and supervise the beneficiaries to be sure they satisfy the conditions in the will. Consider that someone would have to constantly check up on John to make sure he never took a puff—and someone would have to wrench away his property if he ever got caught in the act.

So, to use WillMaker, you must be willing to leave property to people outright; you cannot make them jump through hoops or change their behavior to get it.

Tip: Takers must survive by 45 days. To ensure that property goes to people you want to have it, WillMaker's will automatically imposes the condition that each of your beneficiaries must survive you by 45 days. If they do not survive you by that amount of time, the property you had slated for them will pass instead to the person or institution you have named as an alternate beneficiary, or it will go to the one you have named to take your residuary estate.

Write Joint Wills

In the past, it was common for a married couple who had an agreed-upon scheme for how to distribute all their property to write one document together: a joint will. But time has shown that setup to be crawling with problems.

WillMaker requires that each spouse make his or her own will, even if both agree about how their property is to be distributed. This limitation is not imposed to annoy people or defeat their intentions; there is solid legal reasoning behind it.

Joint wills are intended to prevent the surviving spouse from changing his or her mind about what to do with the property after the first spouse dies. The practical effect is to tie up the property for years in title and probate determinations—often until long after the second spouse dies. Also, many court battles are fought over whether the surviving spouse is legally entitled to revoke any part of the joint will.

There are still some lawyers who will agree to write joint wills for clients, but they take the risk that such wills may become cumbersome or may even be found invalid in later court challenges. For these reasons, it is best for both spouses to write separate wills—a bit more time-consuming, perhaps, but a lot safer from a legal standpoint.

Explain the Reasons for Leaving Your Property

Most of the time, the act of leaving property to people—or choosing not to leave them anything—speaks for itself. Occasionally, however, people making wills want to explain to survivors the reasons they left property as they did. This might be the case, for example, if you opt to leave one of your two children more property than the other to compensate for the loan you made during your lifetime to help one of them buy a house. Although the desire to make such explanations is understandable, WillMaker does not allow you to do it in your will because doing so could add legally confusing language to the document.

However, with your will, you can leave a separate letter explaining your reasoning – and anything else – to you survivors. Read more about writing an explanatory letter to keep with your will.

Name Coguardians for Children's Property

You may name only one guardian to care for the property left to your young children. While you may choose different property guardians for different children, you may not name two people to share the responsibility.

At first glance, it may seem to be a good idea to divide up the job—after all, sometimes two heads are better than one. But naming more than one property guardian often presents more problems than it solves because those two people will have to make every decision together. A difference of opinion could require court intervention, which will cost both time and money. It is better to name just one trustworthy person to make decisions about your children's property, and then name a second equally trustworthy person to take over the job if the first one becomes unavailable.

In contrast, the program does allow you to name a couple to serve as your children's personal guardians. A personal guardian makes decisions about the well-being of the children, rather than the children's property. When those types of decisions will be made in a family setting with two adults, the ability to name a couple is important—so that either adult may take the child to the doctor or to school, for example.

Tip: Review wills to avoid conflicts. People who jointly own property or have children together should review their wills together to be sure they do not provide conflicting information—such as each naming two different guardians for any one child.

Control Property After Death

Property given to others in a WillMaker will must go to them as soon as you die. You cannot make a bequest by will that gives property to one person for life and then gives the same property to a second person when the first person dies. Such an arrangement involves too many variables for both will makers and beneficiaries to handle. You will need a lawyer to carry out this type of plan.

EXAMPLE: Emory wants his grandchildren to get his house when he dies but wants his wife to have the right to live in the house until her death. Emory cannot use WillMaker to accomplish this. Emory would have to use a trust to leave his house to his spouse for her life and then to his grandchildren upon his spouse's death.

Require a Bond for Executors or Property Managers

A bond is like an insurance policy that protects the beneficiaries in the unlikely event that the executor wrongfully spends or distributes estate property. Because the premium or fee that must be paid for a bond comes out of the estate—leaving less money for the beneficiaries—most wills for small or moderate estates do not require one.

Following this general practice, the will produced by WillMaker does not require a bond. Instead, take care to appoint someone you know to be trustworthy.

Although no bond will be required in the will, a court may still require one—especially if the executor or property manager lives out-of-state. Read about Restrictions on Out-of-State Executors.

Leave Property to Your Pet

Animals aren't legally permitted to own property, so you can't use your will to make gifts to your pet. If you name your pet to receive property through your will, that gift will be void and the intended gift and the pet will become part of your residuary estate.

That said, you can use your will to name a new owner for your pet and to leave money to that person requesting that they use it to care for your pet. In most states you can also create a "pet trust" to set up a legal obligation to care for your pet after you die.

Make a Plan for Foreign Property

You cannot use WillMaker's will to make a plan for property that is located in a country other than the United States. The laws of that country will affect how the property passes to beneficiaries, and owning foreign property may affect your estate's taxes. If you own property in another country, get help from a lawyer who has experience dealing with that country's property, probate and tax laws.

Include a No-Contest Clause

WillMaker's will does not include a no-contest clause. A no-contest clause states that a beneficiary who challenges your will after your death forfeits any gifts you have made to that beneficiary under your will. Many people believe that including a no-contest clause will dissuade any would-be beneficiaries from challenging the will.

However, most states will not uphold a no-contest clause if the challenger has a good reason to object to the will—for example, if the challenger shows that the will is not valid because the signer's name was forged. Other states go further and do not uphold no-contest clauses for any reason. Our will does not include a no-contest clause because they give the will maker a false sense of security about possible will challenges, when in reality, such clauses are often not enforced.

If you want to include a no-contest clause anyway, or if you think that there is a good chance that someone will challenge your will, see an experienced estate planning lawyer for help. If you need it, a good lawyer should be able to craft a no-contest clause that creates maximum protection for your specific situation. And in some states, a lawyer may be able to help you "prevalidate" your will, which would greatly reduce the possibility of a challenge.

Provide Property Management for People with Special Needs

It is common to set up management for property that will pass to a beneficiary who has a disability – however, this will is not the place to do it. The management provided by this will is not sufficiently detailed to provide for people with disabilities. Further, passing property directly to a person with special needs could affect that person's eligibility for government benefits.

One common way to properly provide for a person with special needs, is to use a special needs trust. You can read details about this topic in , Special Needs Trusts: Protect Your Child's Financial Future, by Kevin Urbatsch and Jessica Farina Jones (Nolo), or consult an attorney who specializes in dealing with the needs of people with disabilities.

All of that said, if your loved one already has a special needs trust, you can use WillMaker's will to leave property to that trust (rather than directly to the beneficiary). The program will explain how to do this.