Does a Last Will & Testament Supersede Other Documents?

By Jeffry Olson, J.D.

Does a Last Will & Testament Supersede Other Documents?

By Jeffry Olson, J.D.

A last will and testament specifies how certain assets are distributed upon the passing of the testator—the creator of the document. Specifically, it only determines the distribution of the probate assets of the testator. So, certain documents supersede wills in determining the distribution of other kinds of assets.

Fountain pen sitting on a last will and testament

Probate vs. Nonprobate Assets

Only the testator's probate assets are distributed according to the terms of their will. Other, nonprobate assets are distributed pursuant to the terms of the asset. For example, assets placed in a trust, accounts that have designated beneficiaries, and joint tenancy property are nonprobate assets, and a last will and testament does not supersede distribution determined in those documents. When there is an attempt to create a beneficiary for a nonprobate asset, that person receives nothing when the will goes through probate.

Some of the most common nonprobate assets include:

  • Life insurance. Life insurance policies name a beneficiary to receive the benefits when the individual dies. This process is contractual and outside of probate. A will does not impact a life insurance policy.
  • Retirement accounts. Retirement accounts name a beneficiary to receive the benefits after the retiree passes away. Like life insurance, this process is contractual and outside of probate, so a will does not impact it.
  • Pay on death financial accounts. These accounts name a beneficiary receiving payment upon the death of the account holder. A will does not affect these accounts.
  • Trusts. Property held in trust is not impacted by a last will and testament. The terms of the trust determine distribution of assets held within it.
  • Jointly owned property. Jointly owned property, or joint tenancy, is property owned by more than one individual. If that property is owned as "joint tenants with right of survivorship" upon the passing of one owner, the ownership rights transfer to the surviving owner(s) of the property. This transfer occurs outside the probate process and is not subject to a last will and testament.

Power of Attorney

A power of attorney is a document granting authority to an individual, called the agent, over the legal affairs or finances of another person, who's also known as the grantor. However, a power of attorney terminates upon the death of the grantor.

A last will and testament names an individual to manage the affairs of the deceased, also known as the executor of the estate. The executor of an estate and the individual with power of attorney may not be the same person. However, this is only effective when the testator passes away. The authority granted by the power of attorney and last will and testament do not impact each other and are not in effect at the same time.

Other Documents

One document that is explicitly written to supersede a will is a codicil, which is a separate document that amends the latest version of a last will and testament. The codicil must control distribution of the assets it references and supersede certain sections of the latest document. Of course, if you write a new will that revokes all previous versions and codicils, the new one supersedes them.

While the date a codicil is drafted affects whether it supersedes the will, the date a document is drafted does not always impact which document has control. Consider a the comparison with a trust agreement. The date each was drafted does not affect which supersedes the other because the two documents pertain to different assets, as described above.

A last will and testament does not supersede all other documents drafted throughout your lifetime. It only provides for the distribution of probate assets. If you would like any of the nonprobate assets to go to your beneficiaries, then those specific documents must be changed.

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