Property Not Controlled By Wills

Property ownership can be controlled by various methods that cannot be changed by the terms of a will.

Some examples include life insurance policies, retirement plans, and individual retirement accounts. These items typically include a beneficiary designation and are not controlled by a will.

Trust property is also controlled by the terms of the individual trust and not by the terms of a will. This is true whether the decedent was a settlor, trust beneficiary, or trustee. One exception is found when the trust grants a trust beneficiary with a power of appointment, which may be exercised by that trust beneficiary's will.

Joint property owned between spouses as tenants by the entireties or between any people with the right of survivorship automatically passes to the surviving owners and cannot be controlled by a will.  Joint bank accounts also belong to the surviving account holders upon the death of any other account holder.  A testator may also enter a contract that prevents him or her from using a will to transfer of any type of property. For instance, a divorce settlement agreement may contain provisions requiring the automatic transfer of property upon the death of either spouse.

Community property is also outside of a will's control, to the extent that it is owned by the surviving spouse. Although not all states have community property laws, property that becomes classified as community property may retain that status when a couple relocates to from one of the states using that system to any other state. Those states which currently have community property laws are Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin. Alaska also has a form of community property laws that couples may voluntarily agree will apply.

Finally, any will provision that attempts to transfer property owned by someone other than the testator is ineffective and cannot be followed.

See: Property Controlled By Wills