Writing a Will is one of the most meaningful things you can do for the people you love. But knowing what to leave out is just as important as knowing what to put in. Certain assets, instructions and personal details simply don’t belong in a Will, either because they pass outside your estate by law, because including them has no legal effect, or because doing so could cause real problems for your loved ones later.
This guide focuses specifically on what not to put in your Will. If you’re looking for guidance on the formalities of making a valid Will, including how to sign and witness it correctly, our article on 5 common will writing mistakes to avoid covers those points in full. And for a positive checklist of what your Will should contain, take a look at our guide on what to include in a Will.
Jointly owned property held as joint tenants
If you own a property with someone else as joint tenants, you cannot leave your share of it in your Will. Under the legal principle of survivorship, your share passes automatically to the surviving co-owner on your death, regardless of what your Will says.
This is different from tenants in common, where each owner holds a distinct, divisible share that can be left to whoever they choose via their Will.
If you’re a joint tenant but want to leave your share to someone other than your co-owner, you’ll need to sever the joint tenancy first. This is a formal legal step registered with HM Land Registry. Our team can help you understand whether this is the right approach for your situation.
Pension benefits and death-in-service payments
Most workplace and personal pensions sit outside your estate entirely. They’re held by pension trustees, who decide how any death benefits are distributed based on an expression of wish (sometimes called a nomination form) that you complete with your pension provider.
Including pension instructions in your Will has no legal effect. The trustees are not bound by your Will; they’re guided by your nomination form and their own discretion. This means an out-of-date nomination form, perhaps one that still names an ex-partner, can override your intentions completely.
The most important action you can take is to keep your expression of wish form up to date with each pension provider whenever your circumstances change.
Life insurance policies written in trust
If your life insurance policy has been written in trust, the payout goes directly to the named beneficiaries and bypasses your estate altogether. Probate doesn’t apply, and your Will has no effect on where the money goes.
Including a trust-held policy in your Will is unnecessary and can cause confusion for your executors. The trust deed and your nomination of beneficiaries control the outcome. If you’re unsure whether your policy is written in trust, check directly with your insurer.
Funeral wishes and instructions
Many people assume their Will is the right place to record funeral wishes. Unfortunately, funeral wishes in a Will are not legally binding on your executors in England and Wales, and there’s a very practical problem: your Will is often not found or read until after the funeral has already taken place.
If you want your preferences to be followed, record them in a separate letter of wishes or a prepaid funeral plan, and make sure your family and executors know where to find it. Tell them explicitly, whether in conversation or in a covering note, rather than relying on them to discover it.
Digital assets and online accounts
Social media profiles, email accounts, streaming subscriptions and cloud storage are governed by each platform’s own terms of service. Most platforms have dedicated legacy or memorialisation tools, such as Facebook’s Legacy Contact, Google’s Inactive Account Manager and Apple’s Digital Legacy programme. Your Will has little or no control over these.
Crypto-currency, monetised content accounts and domain names with real financial value are a different matter. These can be referenced in your Will, but you should never write passwords, login credentials or security codes into the Will itself.
Once probate is granted, your Will becomes a public document. Anyone can apply for a copy through HM Courts and Tribunals Service, so sensitive credentials could be read by any member of the public. Instead, keep a separate, secure digital asset inventory and tell your executor how to access it.
Conditional, punitive or unreasonable clauses
You can attach certain conditions to gifts in your Will, but the law will not uphold all of them. Conditions that are illegal, impossible, contrary to public policy or too vague can be struck down by the court. The gift may then pass unconditionally, or fail entirely, producing an outcome you’d never have intended.
Conditions most likely to be struck down include those designed to control marriage choices, religious practice or personal relationships, for example “only if my son does not marry” or “provided my daughter converts her faith.” By contrast, age-based conditions such as “when they reach 25” are generally enforceable and widely used.
Gifts to pets
Under English and Welsh law, animals cannot own property. You cannot leave money or assets directly to a pet. If you try, the gift will fail.
The practical alternative is to leave a sum of money to a trusted person, with a clear understanding recorded in a separate letter of wishes that they’ll use it to care for your pet. Another option is a pet care trust, which is a formal legal arrangement that ring-fences funds specifically for your animal’s care.
Gifts to witnesses or their spouses
Under section 15 of the Wills Act 1837, any gift to a person who witnesses your Will, or to their spouse or civil partner, is void. The Will itself remains valid, but that specific gift is lost.
This is why it’s vital to choose witnesses who have no financial interest in your estate. It’s not just a matter of how the Will is drafted: it’s about who signs it. For more on the validity rules around signing and witnessing, see our article on 5 common will writing mistakes to avoid.
Sensitive personal information, passwords and account numbers
As noted above, a Will becomes a public document once probate is granted. Bank account numbers, PINs, safe combinations, passwords and any sensitive personal commentary you include can be read by any member of the public who requests a copy.
Keep this kind of information in a separate, secure document, and make sure your executor knows how to locate it. Your Will can reference the existence of that document, but should never reproduce its contents.
Anything you can’t actually give away
You can only leave assets you actually own outright. The following cannot be gifted through your Will:
- A leased vehicle (you don’t own it outright)
- Contents of a rented property that belong to your landlord
- Business assets owned by a company rather than by you personally
- Assets already committed under a binding contract
- Foreign property, which may need a separate Will made under the law of that country
If you own property abroad, it’s worth speaking to a solicitor about whether a separate Will is needed in that jurisdiction.
Where to handle these items instead
Getting your Will right means knowing which supporting legal arrangements need to sit alongside it. For each of the items covered in this guide, here’s what to do instead:
- Jointly owned property (joint tenants): If you want to leave your share to someone other than your co-owner, sever the joint tenancy via HM Land Registry before updating your Will.
- Pension death benefits: Complete and keep up to date an expression of wish / nomination form directly with each pension provider.
- Trust-held life insurance: Review the trust deed and update your named beneficiaries with your insurer.
- Funeral wishes: Record preferences in a separate letter of wishes or prepaid funeral plan, and tell family and executors where to find it.
- Digital accounts: Register your preferences using each platform’s own legacy or memorialisation tools, and maintain a separate secure digital asset inventory for your executor.
- Pets: Leave a sum of money to a trusted person with a supporting letter of wishes, or set up a pet care trust.
- Sensitive personal information: Store bank details, passwords and similar information in a separate, secure document and let your executor know how to access it.
Taking care of each of these properly ensures that your wishes are followed and your loved ones aren’t left dealing with complications at an already difficult time.
Frequently asked questions about Will writing
Can I put conditions on an inheritance in my Will?
Yes, but only conditions that are reasonable, lawful and clear. An age condition such as “my grandchild must reach 25” is normally enforceable. Conditions designed to control who someone marries, what religion they follow or how they live are likely to be struck down by the court as contrary to public policy.
Can I disinherit my spouse or children in England and Wales?
There’s no rule of forced heirship in England and Wales, so you’re not legally required to leave anything to any particular person. However, spouses, civil partners, children and certain dependants can make a claim under the Inheritance (Provision for Family and Dependants) Act 1975 if they feel reasonable financial provision hasn’t been made for them. A letter of wishes explaining your reasoning can be helpful in these situations, even if it isn’t legally binding.
Should I include my pension in my Will?
No. Pensions are administered by scheme trustees and paid out according to your expression of wish form, not your Will. Review and update your nomination form with each pension provider whenever your circumstances change.
Are funeral wishes in a Will legally binding?
No. Funeral wishes recorded in a Will are not binding on your executors in England and Wales, and the Will is often not read until after the funeral has taken place. Record your wishes separately in a letter of wishes or funeral plan, and make sure your family and executors know where to find them.
Can I leave my share of a jointly owned house in my Will?
Only if you own it as tenants in common. If you hold the property as joint tenants, your share passes automatically to the surviving co-owner by right of survivorship. To leave your share to someone else, you’ll need to sever the joint tenancy before you die.
Can I include passwords or my digital legacy in my Will?
Don’t put passwords in your Will. Once probate is granted, your Will becomes a public document that anyone can obtain a copy of. Use a separate, secure password manager or written inventory instead, and register your preferences using each platform’s own legacy or memorialisation tools.
Talk to Devonalds about your Will
Making a Will that truly reflects your wishes means knowing not just what to put in it, but what to keep out of it and which other legal arrangements need to sit alongside it. At Devonalds Solicitors, our Wills solicitors offer clear, practical guidance to help you get everything in place correctly and with peace of mind.
Find out more about our Wills pricing, or read our guide on why having a Will matters if you haven’t yet put one in place.
To speak to one of our team, contact your nearest Devonalds office:
Call us on 01443 779050 or use our online contact form and we’ll get back to you as soon as possible.