20 Years of Probate, 5 Common Mistakes: What Not to Put in Your Will
20 Years of Probate, 5 Common Mistakes: What Not to Put in Your Will
By Melinda Gustafson Gervasi
June 5, 2026
What is a Will, Anyway? At its core, a Last Will and Testament is a legal document with a specific, focused job: it directs how your probate assets should be distributed after you pass away, and it names the person (the personal representative or executor) responsible for making sure those wishes are carried out. Think of it as the ultimate set of instructions for your probate estate. Note -- probate assets are those assets that have no co-owner or named beneficiary. If an asset has a co-owner or named beneficiary, that asset will pass to the person(s) named directly, ignoring the will and avoiding the probate process.
Because a will has such a specific purpose, cramming it full of every final thought, personal detail, or medical wish can actually cause major legal headaches. Over my two decades of practicing estate planning and probate law, I’ve seen a few things included in drafts that stand out like a sore thumb.
Here are five things that absolutely do not belong in your will—and where they should go instead.
1. Your Social Security Number
Why it’s a sore thumb: A will becomes a matter of public record once it is filed with the probate court.
The fix: Leaving your SSN in a public document is an open invitation for identity theft. Court forms have separate, confidential tracking sheets for sensitive data, but your actual will should keep your SSN completely private.
2. Funeral and Burial Directions
Why it’s a sore thumb: A will is rarely read or legally validated until days or weeks after a funeral has already taken place.
The fix: If your family has to wait for the formal reading of the will to know whether you wanted to be buried or cremated, it’s already too late. These wishes should be written down in a separate, easily accessible letter of instruction given directly to your loved ones, or arranged ahead of time with a funeral home. In my home state of Wisconsin where I practice law, we have a form called the Authorization for Final Disposition. This allows you to appoint a first, second and third person to make arrangements for burial. It also allows you to specify wishes, such as cremation.
3. End-of-Life Medical Decisions
Why it’s a sore thumb: A will only takes effect after you pass away. It has zero legal authority while you are alive.
The fix: Decisions about life support, feeding tubes, and mechanical ventilation belong in a Living Will (also known as a Declaration to Physicians) and a Power of Attorney for Healthcare. These documents speak for you during a medical crisis when you cannot speak for yourself.
4. Property with a Named Beneficiary or Co-Owner
Why it’s a sore thumb: A will only controls assets that go through the probate process. It cannot override a beneficiary form (which functions like a contract).
The fix: If you have a life insurance policy, a retirement account (like a 401k or IRA), or a bank account with a designated beneficiary, that money passes directly to them by law. The same goes for real estate held in joint tenancy. Writing "I leave my bank account to my son" in your will is completely meaningless if your daughter is named as the payable-on-death beneficiary on the account itself.
5. Illegal or Unenforceable Conditions
Why it’s a sore thumb: You cannot use a will to force people to break the law, nor can you place conditions on a gift that violate public policy.
The fix: Conditions that require someone to marry a specific person, divorce their spouse, or change their religion to inherit are generally struck down by courts as unenforceable.
A good estate plan is like a well-organized toolbox. A will is a powerful tool, but it is just one tool in the tool box. Make certain you are using all the right tools, or legal instruments, to accomplish your assorted goals for both illness and death.
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| Image by M. Gustafson Gervasi, 2026 |
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