Can a Person Legally Draw a Will on Property They Do Not Own?

When it comes to estate planning, a common question arises: can a person draw a will on property that they do not own? The answer is both straightforward and complex. It is not illegal, but it does not result in the intended legal effect.

Overview of Estate Planning and Property Ownership

In the jurisdictions I am familiar with, owning property is not a requirement for making a will. A will, which is a legal document expressing one's wishes regarding the distribution of assets after death, can cover a wide range of property types—real estate, investments, personal belongings, and more.

Legal and Practical Implications

While creating a will is not restricted by property ownership, it is important to understand that a will only controls the assets in one's personal estate. If a person mentions property in their will that they do not own, the clause may be ignored. For instance, if a homeowner who mentions their house in their will later sells the house before passing away, the will provision regarding the house will likely be disregarded.

Examples of Will Provisions and Their Limitations

A common scenario involves a house being mentioned in a will. If the homeowner then sells the house and later dies, any will provisions relating to the house will be irrelevant. Similarly, if a person includes a specific asset like the Brooklyn Bridge in their will, it is irrelevant because they do not own it.

Joint Ownership and Beneficiaries

Even if a will specifies the distribution of assets, the actual control of these assets can be influenced by other legal arrangements. For example, if an investment account is jointly owned or has a named beneficiary, the will's provisions may be overshadowed. In the example provided, if a person lists an investment account beneficiary as Joe Blow, Mary Winner’s name on the beneficiary designation form will supersede the will’s provisions, even if the will states otherwise.

Legality and Practical Considerations

Creating a will on property one does not own is not illegal. However, it is a waste of time because it does not achieve the intended legal effect. If a person wishes to ensure that their wishes regarding property distribution are honored, they must ensure that their interests and wishes are legally documented through proper means.

Seeking Legal Advice

It is highly advisable to seek professional legal advice when drafting a will. Consultation with a licensed attorney can provide clarity on the legal implications and help formulate a will that aligns with one's wishes. Ignoring this advice can lead to unforeseen legal issues and potential disputes among beneficiaries.

Conclusion

In summary, while a person cannot legally be penalized for including non-owned property in their will, the provisions related to such property will be disregarded. It is crucial to align will provisions with other legal documents, such as beneficiary designations and joint ownership arrangements, to ensure that the final wishes are effectively communicated and followed.