What passes by will, by title or by designation

Property passing by will or intestacy

In Minnesota, for example, property devised by will remains subject to estate administration, creditors, statutory allowances, the surviving spouse’s elective share and restrictions under the homestead and descent statutes. Other states differ.

In Minnesota, for example, property not disposed of by will passes to heirs under intestacy law after spousal and family allowances. A will may expressly exclude an heir. Other states differ.

Property passing by survivorship title

In Wisconsin, when one of two joint tenants dies, the survivor becomes sole owner. When one of three or more dies, the survivors remain joint tenants of the entire interest.

Wisconsin survivorship is governed by its statutory survival requirements. A survivor’s statutory disclaimer severs the disclaimed interest as of death. If one joint tenant unlawfully and intentionally kills another, the state’s slayer statute governs the deceased tenant’s interest.

For your review, bring the actual deed or ownership agreement rather than relying on a description such as “jointly owned.”

Property passing through a payable on death account

In Minnesota, for example, remaining POD account deposits belong to surviving POD payees when the original party, or last surviving original party, dies. Other states differ.

If several payees survive, they have no subsequent survivorship between themselves unless the account or deposit agreement expressly provides it.

A will specifically referring to the account can change POD survivorship. The institution is bound only after written notice of the claim. It then must leave the deposit undisbursed until a probate court order adjudicates the decedent’s interest disposable by will.

Transfers under Minnesota’s account survivorship statute operate through the account contracts and statute outside probate, except transfers expressly changed by will under clause (d).

When other estate assets are insufficient, these transfers cannot defeat debts, taxes, administration expenses, statutory family allowances or authorized state or county claims under the specified medical assistance recovery statute.

This limit applies to the extent the decedent was the source or beneficial owner of the funds. Other states differ.

Retirement and insurance beneficiary designations

For ERISA covered benefits, fiduciaries follow governing plan documents insofar as those documents comply with ERISA. In Kennedy, the particular plan documents directed payment to the designated beneficiary and prescribed how designations and changes were made.

Pension plans must also pay benefits in accordance with applicable requirements of a qualified domestic relations order. Read the plan documents alongside the designation when preparing questions about employer benefits.

An IRA owner may choose a person or entity to receive IRA benefits after death. Beneficiaries of a traditional IRA must include taxable distributions they receive in gross income.

In Minnesota, for example, when life insurance is effected in favor of another person, that beneficiary is entitled to the proceeds against the creditors and representatives of the person effecting the insurance. Other states differ.

Premiums paid in fraud of creditors, with interest, benefit those creditors from the proceeds if the insurer receives specific written notice before payment.

Property administered under trust terms

In Minnesota, for example, after accepting trusteeship, a trustee must administer trust property in good faith according to the trust’s terms and purposes, beneficiaries’ interests, the trust chapter and all other applicable law. Other states differ.

Compare the trust document with the ownership records for each asset. Keep a separate question list for property already held in trust and property intended as a gift through the will.

Two related terms

Perspective on getting knowledgeable help

"Now, I want to caution everyone watching this today, you have to know what you're talking about. You cannot dabble in the strategies that I'm about to discuss. It does take some work or in the beginning, you could partner with someone that knows what they're talking about."

Common questions