Does a Last Will & Testament Supersede Other Documents?

By Elizabeth Rayne

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 However, understanding which documents are superseded by a will can make sure that a decedent's wishes are effectively carried out.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trusts, and certain types of accounts such as POD accounts, are distributed by action of law upon death, and cannot be superseded by a will.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.

Joint Tenancy

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.

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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.

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Illinois Laws on Wills

A valid will can nominate someone to manage your estate and detail how your property should be distributed when you die. In Illinois, wills must comply with the Illinois Compiled Statutes, which address requirements such as the age and mental condition of the person making the will. If your will doesn't meet these requirements, it may be declared invalid, and your estate will be distributed according to state law.

Does an Amendment to a Revocable Trust Need to Be Notarized and/or Witnessed After It Is Signed?

A revocable living trust is an intangible entity that serves as a means of transferring property after the death of the trust creator. Unlike a person, a revocable trust does not die, so probate is generally not required when handling a trust. A key benefit of a revocable trust is the ability of the trust creator to amend it. Depending on the circumstances, the signing of an amendment may or may not require witnesses and/or notarization. When in doubt as how to proceed, an estate planning attorney should first be consulted.

Amending a Testamentary Trust

To set up a testamentary trust, you include language in your last will and testament stating your intention to establish the trust. Because your will doesn't take effect until you're deceased, the testamentary trust can be amended before your death, usually by amending the will.

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