If I leave something in my will to a certain person does that guarantee
that he or she will receive it?
Whether or not someone will receive an asset that you left him or her in your will at your death will depend on a variety of factors.
The principal factor as to whether that asset is controlled by your Last Will will depend upon the following:
1. Is the property owned in joint tenancy? If the property is owned in joint tenancy the surviving joint tenant automatically ends up owning the property regardless of what you have said in your will.
2. Is the property in a bank account that has a “payable on death” (POD) designation? Upon the death of the owner of the account, those assets will pass to the person who is named as the POD beneficiary regardless of what you have stated in your will.
3. Is the asset held in a brokerage account that has a “transfer on death” (TOD) designation? Similar to the POD identified above, the TOD designation automatically transfers the ownership of the assets in that account to the named recipient regardless of what you have said in your will.
4. Is there a beneficiary designation?
a. Life insurance policies almost always have a beneficiary designation. The named beneficiary will receive the proceeds of the life insurance policy regardless of what the will directs.
b. Most IRA and other retirement savings accounts, such as 401(k)s, have beneficiary designations. Again, those assets will transfer to the named beneficiary instead of the beneficiaries named in the will.
c. Annuities also typically have named beneficiaries and again, that beneficiary designation would control who is to receive the annuity at the death of the owner and not the will.
d. Colorado law also recognized a particular kind of deed called a “beneficiary deed.” If the deed is executed and recorded prior to the death of the owner of the property, then the deed directs who is to receive the real estate upon the death of the owner, regardless of what the will says.
5. Assets that are owned by a revocable trust or revocable living trust (all the same thing) will pass to the trust beneficiaries and not according to a beneficiary named in a will.
The above list of “probate avoidance” devices is not exhaustive but does give a fair indication that merely naming an asset in a will to be received by a particular person in and of itself is no guarantee that that will happen. To be certain you should check with your estate planning attorney.