Does the Last Will and Testament solely control my estate distribution?

When I first become an attorney in 1988, the Last Will and Testament (“Will”) controlled most, if not all, of the distribution of a person’s probate assets upon their passing. Today, assets can be distributed at death in other non-probate ways.

As to real estate, there are several ways non-probate transfers can occur. Many clients establish revocable living trusts and/or irrevocable trusts in which they deed real estate into these trusts that will transfer according to the terms of these trust documents upon passing, and thereby avoiding probate and the terms of a Will. Another common method for transfer of Indiana real estate is a Transfer on Death Deed. This is a document that is recorded like a normal deed; but transfers, if owned at death, the real estate to the named beneficiaries, or backup beneficiaries if any are pre-deceased according to the terms of the Transfer on Death Deed. Real estate can be owned jointly with rights of survivorship that passes automatically to the surviving owner(s) upon death as well. Also, many times a family member will transfer by deed a “remainder interest” in real estate to their heirs and retain a “life estate”. The life estate interest allows them to retain their full use and possession of the real estate while they are alive. Upon death, the life estate holder’s interest is extinguished and the remainder interest owners now own the real estate outright.

As to financial accounts, they can be jointly owned such as joint checking or a savings account. Typically, they will transfer automatically to the surviving joint owner on that account. Likewise, a person can also put a POD/TOD (Payable/Transfer on Death) designation on any financial accounts which is form and by contract controls who receives these funds at death of the account owner. The POD/TOD designation only transfers upon death, and the person would not have access to this account merely because the person is listed as a beneficiary on this account. This is similar to the beneficiary forms used on life insurance policies, annuities, and retirement accounts to name beneficiaries.

Any assets solely (not jointly held) in the name of the decedent and that do not have beneficiaries listed will be probate assets and the distribution will be controlled by the Last Will and Testament of the decedent; if no Will is executed; then Indiana law has a distribution statute on how a decedent’s estate is distributed in the absence of a Will.

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