Property You Can't Include in a Will

Legally, there is some property that you cannot include in a will. This is usually property that you own jointly with someone else or property that already has established beneficiaries.

Types of property you can't include in a will

Generally, the property you cannot include in a will includes:

  • Any property that is held in joint tenancy (owned equally by two parties), such as a house that you own equally with your spouse, since the property will automatically transfer to the surviving owner.
  • Any trusts, retirement plans, or insurance policies that clearly state a beneficiary 
  • Stocks or bonds that are set to transfer to another party upon death (property for which a beneficiary has already been named) 

Digital property

While many people consider digital assets to be property, the law has not yet caught up with this reality. Most online media companies (including social media, email and communication, photo and image sharing, etc.) are legally forbidden from disclosing content or granting account access to a third party without the consent of the owner. In the event that the owner of the content or account is deceased, the law generally agrees that family of the person who owned the accounts cannot claim a right to access those accounts.

Many people include login and password information in wills in an attempt to transfer digital accounts to heirs; this does not always work, as many companies claim that the transfer of access rights violates the company's terms of service. In addition, a will is a public document, and sharing login and password information in your will is not a very secure way of communicating that information. If you're interested in creating a secure digital estate plan, see our article How to Create a Digital Estate Plan.

That said, different states have different approaches to this issue. Connecticut and Rhode Island allow executors to access email accounts, and Indiana, Idaho, and Oklahoma allow executors access to email accounts, social networking accounts, and blogging accounts. For a list of active and pending digital estate planning legislation, see our article State-by-State Digital Estate Planning Laws.

Property with designated beneficiaries

If you have already named a beneficiary for certain assets but would like to leave that property to somebody different, you can usually revise the designated beneficiary. You generally have the right to change the person who is named as the beneficiary of a trust, retirement plan, insurance policy, or stocks or bonds that are set to transfer upon death.

It’s a good idea to periodically review the beneficiaries of these types of assets since you may have them for a very long time and your life situation may change significantly over the course of ownership, such as when you get married or have children. If you want to change the beneficiary designations on any assets with named beneficiaries, be in touch with the person or company that helped you set up the trust, plan, or policy to figure out how to do that.

To learn about property you can include in your will, see our article Property to Include in a Will.

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