An estate plan’s primary purpose is to organize how an individual’s estate will be disposed of when they die. In addition, estate planning documents may outline how the estate owner—referred to as the testator—should receive medical treatment, who will manage their finances if they become incapacitated, who they wish to designate as guardian to any minor children they may leave behind, and how their business interests should be managed. In addition, the testator may specify funeral arrangements in their estate plan.
The extremely personal nature of estate planning means many people wish to draft customized documents which accurately represent their goals and aims. One common question from clients who wish to build a custom plan (as opposed to the boilerplate plans available on DIY websites) is, “can you put conditions in a will?” The short answer to this question is yes. An experienced estate planning attorney can work with you to craft personalized provisions which ensure certain assets are only passed on if certain conditions are met. An overview of conditional gifting explains how this may work.
Conditional Gifting: An Overview
A conditional gift is a provision included in a person’s will which states that the distribution of certain assets is conditioned upon the beneficiary fulfilling a specific requirement. You might, for instance, require that your grandchild graduate from high school before they receive their inheritance money. Or, by way of another example, you might pass the cottage on to your children on the condition that it never be used as a rental property. These two examples represent condition precedent and condition subsequent gifts, respectively—the two different types of conditional gifts you may include in your will.
Condition Precedent Gifts
This type of conditional gift requires that a stipulated condition be met before the gift is made. Of the two types, it is easier to enforce but only if the condition is clear, achievable, and time-bound. Without these characteristics, a condition becomes increasingly difficult to enforce as years pass by. An experienced attorney will provide a comprehensive explanation of effective types of conditions.
Condition Subsequent Gifts
This type of conditional gift is given freely but revoked if the condition of its distribution is violated. In the example provided above, the cottage would pass freely to your children but if used as a rental property it would revert to the estate and be distributed according to a previously set alternative. This type of condition is more difficult to enforce because of its open-ended nature.
A final point worth mentioning regarding conditional gifts is that not all conditions are valid. Any that require illegal activity is unenforceable, of course, and further, any that require a beneficiary to marry or divorce or change their religion will not be upheld by a court. Lastly, as estate planning legislation varies by state, it may be that certain conditions are unenforceable in your region but not in general.
For all of these reasons, if you find yourself asking, “Can you put conditions in a will?” it is important to seek your answers from an experienced estate planning attorney. To learn more about conditional gifting or any other subject related to estate planning, do not hesitate to call the Estate Planning Law Group of Georgia at 770-822-2723 or to contact us through our website.
Contact Attorney James M. Miskell