Here’s a fun stat to ruin your day: only 24% of Americans had a will in 2025, down from 33% just three years earlier. More than half of people without one say it’s because they don’t have enough assets. But here’s the thing nobody talks about — even people who do have a will are often filling it with stuff that shouldn’t be in there. And some of those mistakes can cost your family thousands of dollars, trigger legal fights, or accidentally cut someone off from government benefits they desperately need.
A will sounds simple. You write down who gets what, sign it, and feel responsible. But a will is a very specific legal tool that only controls certain types of property. Cramming the wrong things into it doesn’t just waste ink — it creates real problems. Let’s go through what doesn’t belong.
Retirement Accounts and Life Insurance Already Have Instructions
This is the single most common mistake people make, and it trips up families constantly. Your 401(k), IRA, pension, and life insurance policy all have beneficiary designations built right into them. When you die, those assets go directly to whoever you named on the account forms — not whoever your will says should get them.
So imagine this: Brandon names his daughter Emma as the beneficiary of his retirement account. Years later, he writes a will leaving that same account to his girlfriend Sophia. When Brandon dies, Emma gets the money. The will doesn’t matter. That’s a real example from legal experts who see this play out regularly. If your beneficiary designations and your will say different things, the designations win — every single time. And the people left out may sue anyway, dragging your estate into a fight you could have prevented.
Your Passwords, PINs, and Social Security Number
People think their will is a private document. It’s not. When you die, your will gets filed with the court and becomes a public record. Anyone — potential heirs, court staff, random strangers — can access it. So if you listed your bank account numbers, crypto keys, passwords, or Social Security number in your will, congratulations, you just published that information.
Instead, estate attorneys recommend putting all of that sensitive stuff in a separate, private document — sometimes called a personal property memorandum — that you entrust to one or two people. You reference the document in your will without including the actual data. Simple fix, but almost nobody does it.
Digital Assets Are a Bigger Deal Than You Think
One Indiana estate planning firm made a strong case that digital assets are the most overlooked item in this whole conversation. We’re talking about email accounts, social media profiles, photo libraries, streaming subscriptions, gaming accounts, encrypted files, and the physical devices that hold them — your laptop, tablet, phone, flash drives.
A digital asset inventory — complete with usernames, passwords, and answers to secret questions — needs to exist somewhere, but definitely not in your will. Legal scholars at UC Berkeley recommend setting up a durable power of attorney for finances and creating Legacy Contacts on your smartphone. If you become incapacitated before you die, someone needs to manage your digital life immediately, not months later when the will gets probated.
Funeral Plans Get Read Too Late
This one seems so logical that people keep doing it anyway. You want to be cremated, not buried. Or you want a specific song played. Or you want a green burial in the woods. So you put it in your will. The problem? Your will usually isn’t read until days or weeks after you die. By that point, your family has already made funeral arrangements. Your wishes were sitting in a filing cabinet the whole time.
Estate attorneys almost universally recommend writing your funeral preferences in a separate letter of instruction and giving it directly to the person who will be handling things. Better yet, pre-plan with a funeral home so the details are already locked in.
Jointly Owned Property Doesn’t Need Your Permission
If you own a house with your spouse as joint tenants with right of survivorship, that property passes to your spouse automatically when you die. No will required. No probate. No court involvement. Including that property in your will creates confusion and can even open the door to unnecessary litigation.
Same goes for payable-on-death (POD) and transfer-on-death (TOD) bank and brokerage accounts. If you already named a beneficiary when you set up the account, that designation overrides your will. Period. If you need to change the beneficiary, you do it through the bank or brokerage — not through an updated will.
Business Interests Can Destroy the Business
If you own a business — whether it’s an LLC, a partnership, or a sole proprietorship — putting your business interests in your will is asking for trouble. Wills must go through probate, a process that typically takes 9 to 15 months according to estate planning professionals. During that time, the business may not be able to function properly. Decisions get delayed. Partners get frustrated. Employees get nervous.
Business assets also often involve buy-sell agreements and operating agreements that your will might directly contradict. The smarter move is a living trust, a succession plan, or a buy-sell agreement that kicks in immediately.
Gifts With Strings Attached Usually Backfire
“I’ll leave Anna $100,000 — but only if she stays married to Ben.” That kind of conditional gift sounds like you’re looking out for someone, but it almost always creates a legal mess. Courts have thrown out conditions tied to marriage, divorce, or religion because they’re considered unenforceable or against public policy.
And even “reasonable” conditions — like “to my grandson when he graduates college” — can create headaches. What if he drops out to start a wildly successful business? What if he takes 12 years to finish? If you want to control how money gets used, a trust is the right tool. Trusts let you set conditions, appoint someone to manage the money, and keep everything out of court.
Leaving Money to Someone on Medicaid or SSI
This one is heartbreaking when families get it wrong. If a loved one receives government benefits like Medicaid or Supplemental Security Income, leaving them money or property outright in your will can disqualify them from those programs. The very act of trying to help them financially can yank away the healthcare and income they depend on.
The fix is a supplemental needs trust (sometimes called a special needs trust). It holds and manages assets for the beneficiary while preserving their eligibility. A trustee distributes money according to your instructions, and the benefits stay intact. Skipping this step out of ignorance can do real, lasting damage to someone you were trying to protect.
Firearms Have Their Own Rules
Guns are one of the most heavily regulated items you can own, and handing them off through a will is a legal gray area that most people don’t think about. Federal and state laws impose age restrictions, background checks, and mental competency requirements on firearm ownership. You can’t just leave your gun collection to your nephew if he’s legally barred from owning them.
Estate planning attorneys strongly recommend a gun trust or NFA trust for transferring firearms. These trusts handle the legal compliance automatically, ensuring the transfer doesn’t accidentally make someone a felon. If you own even one firearm, this is worth looking into.
Property Already in a Living Trust
If you already have a living trust — and you should, if your estate is even moderately complex — then property placed in that trust has its own set of instructions. The trust document names beneficiaries and a trustee who manages everything. Mentioning that same property in your will creates a contradiction. Your will says one thing, your trust says another, and now your family is paying attorney fees (which can run from $1,000 to $10,000) to sort it out in court.
A living trust is more expensive upfront than a will, but it saves money by sidestepping probate entirely. For reference, probate for an average estate takes six months to two years. That’s six months to two years during which your family is waiting, worrying, and possibly fighting.
Angry Personal Messages
Here’s one that feels satisfying to imagine but almost always goes wrong: using your will to settle scores. “I’m leaving nothing to my son because he married that woman” or “My daughter knows what she did.” Dramatic? Sure. Smart? Not even close.
Personal commentary about disinherited family members stirs up resentment and practically invites a legal challenge. And remember — your will is a public document. If you need to leave someone out, a simple, clean statement does the job. If you want to explain your reasoning to your family, write a private letter. Don’t turn your will into a reality TV confessional.
The bigger lesson here is that a will is just one piece of an estate plan, not the whole thing. Trusts, beneficiary designations, powers of attorney, letters of instruction — these tools work together. A will stuffed with the wrong items doesn’t just fail to help. It actively makes things worse for the people you love most.
