Contrary to popular belief, a Last Will and Testament does not necessarily have the final say about what happens to a person’s assets when they die. Setting aside the claims of creditors, the role of a Last Will and Testament is to control the distribution of Probate Assets. Probate Assets are properties owned in the decedent’s name, which do not have a joint owner or designated beneficiary. The Last Will and Testament only controls the Probate Assets.
Any real estate, account, investment, or any other property held by a joint tenant with rights of survivorship will automatically pass by law to the surviving joint tenant. Examples of rights of survivorship would be real estate or joint bank accounts held by spouses. Upon the death of one spouse, the asset automatically belongs to the survivor.
To avoid court administration of an estate, a/k/a probate, many people will use tools like Transfer on Death Deeds for Real Estate, Pay on Death or Transfer on Death designations, and beneficiary designations on assets like IRAs and life insurance. If you are concerned about the hassle and expense of probate, seek the advice of an experienced Elder Law Attorney.