Imposing strange or amusing conditions upon heirs may make for good novels. However, in the real world, terms and conditions are limited by the law. A last will or trust contains language specifying how you want assets to be distributed after your death. Some conditions and terms are included, but others should be left for fiction authors, according to a recent article titled “What Can You Force Your Heirs to Do To Get Your Wealth” from Forbes.
If something is illegal or against public policy, it is not acceptable in the last will. Defining public policy is not as easy as whether something is unlawful, but it can be described effectively enough or clarified by your estate planning lawyer. For example, making a gift of land to the town on the condition that an offensive statue is placed in the middle of the land would be against public policy. Requiring an individual not to marry a specific person or type of person before they can inherit is considered illegal in the last will. Beneficiaries are not to be prevented from living their lives free through the force of the last will.
Whether a condition is valid depends upon whether it is a precedent that existed your death or a condition that occurs after your death. For instance, a requirement for a beneficiary to live in a specific location at the time of your death might be considered valid by a court. However, a condition requiring a spouse never to remarry would not be reasonable.
Blatantly illegal terms of inheritance are quickly terminated. Leaving money to a known terrorist organization or requiring an heir to commit a crime is an easy no-go. However, sometimes things get murky. Restraints on getting married or selling or transferring property are two of the biggest problems, and often the stories behind the last wills are sad ones.
A condition of not marrying, divorcing, or remarrying is not legal. However, a requirement that the beneficiary does not marry outside of the faith has been enforced as a valid last will condition. A complete prohibition of a second marriage by a surviving spouse has been deemed void. It should be noted that certain requests have been permitted, like having a surviving spouse lose payments from a trust when they remarry. As old-fashioned as it may sound, courts have affirmed the concept of the specific limitation to provide financial support only until the surviving spouse remarries and is, therefore, not void.
A probate court will not automatically void a condition on a bequest, even if it is clearly illegal. The beneficiary, or another interested party, must file with the probate court to have the condition voided. If you fail to do so, when the last will or trust is administered, you can lose your right to revoke the condition.
A better way to go: don’t try to control your heir’s behavior from the grave. It creates terrible ill will and may cloud a lifetime of happy memories. If you don’t want to give something to someone, your estate planning attorney will help you create an estate plan and possibly a trust, to control how your assets are distributed.
Reference: Forbes July 21, 2021 “What Can You Force Your Heirs to Do To Get Your Wealth”