Thinking about the distribution of assets following death is not exactly a comforting topic. However, understanding which documents are superseded by a will can make sure that a decedent's wishes are effectively carried out. Certain property, including life insurance, retirement plans, trusts, and certain types of accounts such as POD accounts, are distributed by action of law upon death, and cannot be superseded by a will.
Probate and Nonprobate Property
When an individual drafts a will, he provides for distribution of probate property. Nonprobate property automatically disperses upon the death of the individual, and as a result, the legal documents related to nonprobate property essentially supersede provisions in the will. Examples of nonprobate property include assets transferred by contract, jointly owned property and trusts. During an individual's lifetime, he may enter into a contract for a pension, life insurance policy or retirement plan that automatically passes to someone else after death, despite what may be in the individual's will.
When two or more individuals jointly own property, depending on the type of ownership, it might not be possible to pass the property in a will. An individual may pass his share of the property only if the deed to the property is titled as "tenants in common." However, if the deed or other legal conveyance specifies that the property is owned by "tenants by the entirety," or "joint tenants with the right of survivorship," a will cannot pass the property. Instead, the property is automatically passed to the other owners of the property.
Any time after a will is drafted, you may add additional provisions that supersede the will. Amendments to the will are referred to as codicils. However, to add new provisions that supersede the will, codicils must be properly executed. If you cross out provisions and write in new amendments in the margins, the codicil will likely be ineffective. Instead, you must follow the same laws for drafting the will, and follow the requirements for witnesses and signatures. Further, you must list the date the codicil was drafted.
Power of Attorney
Unlike codicils and legal documents concerning nonprobate property, wills do supersede Power of Attorneys. A POA is a legal document that grants another person the authority to act on your behalf. However, a POA automatically terminates when the principal, or the person is granting authority under the POA, dies. In drafting a will, you may appoint an executor who will be responsible for taking care of your probate estate after you pass away.
- Colorado State University: How Property Passes at Death
- National Paralegal College: Items Not Disposed of by a Will (Nonprobate Property)
- The Free Dictionary: Tenancy in Common Legal Definition
- American Bar Association: Changing Your Mind - Changing, Adding To, or Revoking Your Will or Trust
- The Florida Bar: Florida Power of Attorney Pamphlet
Elizabeth Rayne earned her J.D. from Penn State University and has been practicing law since 2009, advising clients on issues ranging from employment law to nonprofit management. For two years, she served as a contributing editor for the "Vermont Environmental Monitor."