Your Will Won't Cover Everything: The Assets That Pass Outside Probate, and Why Grant, Riffkin & Strauss, P.C. Checks Them First

Most people sign a will and assume the estate plan is finished. It usually isn't. At Grant, Riffkin & Strauss, P.C., the gap we run into most often has nothing to do with a poorly drafted will and everything to do with what the will never touched: the 401(k), the life insurance policy, the joint account at the credit union. Those assets transfer by contract or by title, not by testamentary instruction, and in many estates they are the biggest dollars on the table.

What does a will actually control?

A will controls probate assets only. That means property titled in your sole name, with no surviving co-owner and no beneficiary designated on it: personal belongings, a car in your name alone, a checking account with no payable-on-death instruction, a share of a family business.

Two terms worth defining. Probate is the court-supervised process of proving a will, paying valid creditor claims, and distributing what's left. A non-probate transfer is an asset that passes automatically at death, by contract or by operation of law, without the court ever seeing it. The second category ignores your will completely.

Which assets pass outside probate?

The recurring ones:

• Retirement accounts, including 401(k), 403(b), and IRA balances, which go to whoever appears on the beneficiary form held by the plan or custodian

• Life insurance and annuity proceeds, which follow the policy's named beneficiary

• Bank and brokerage accounts carrying payable-on-death or transfer-on-death registration

• Real estate held in joint tenancy with right of survivorship, or as tenancy by the entirety between spouses

• Anything already retitled into a revocable living trust

• In many states, real property conveyed by a transfer-on-death deed, and vehicles with TOD registration

Skipping probate is not the same as skipping tax. Life insurance you own is pulled into your gross estate under Internal Revenue Code section 2042. The federal exemption sits at $15 million per person for 2026, so most families owe nothing federally, but several states tax estates at far lower thresholds.

Why does a beneficiary form beat your will?

Because the plan administrator answers to the plan document, not to the probate judge. The Supreme Court made that concrete in Kennedy v. Plan Administrator for DuPont Savings and Investment Plan, 555 U.S. 285 (2009), holding that the administrator acted properly in paying a former spouse who was still named on the form, even though she had waived her interest in the divorce decree. Eight years earlier, in Egelhoff v. Egelhoff, 532 U.S. 141 (2001), the Court held that ERISA preempts state laws that automatically strip an ex-spouse of a designation upon divorce.

Many states do have revocation-on-divorce statutes patterned on Uniform Probate Code section 2-804, but those statutes cannot be relied on to reach employer-sponsored plans governed by federal law. Submitting a corrected form is the only dependable fix.

What should you check, and how often?

Pull the actual designation on file for each account, not the version you remember completing. Then confirm three things: the primary beneficiary is who you intend, a contingent beneficiary exists, and no minor is named outright.

That last point causes real trouble. A minor cannot hold an inherited account, so a court typically appoints a guardian or conservator of the estate, and the child takes the full balance at 18 or 21 depending on the state. Naming a properly drafted trust keeps the money under a trustee's control on a schedule you set.

Events that should trigger a review: marriage, divorce, the birth or adoption of a child, the death of anyone you've named, a job change or rollover (a new employer's plan starts with a blank form), and buying property jointly with another person.

How does the SECURE Act 10-year rule affect who you name?

The SECURE Act of 2019 ended the lifetime stretch for most non-spouse beneficiaries, who now must empty an inherited retirement account by the end of the tenth year after death. IRS final regulations issued in July 2024, applicable beginning in 2025, confirm that when the owner died on or after their required beginning date, the beneficiary must also take annual required minimum distributions during that window. Eligible designated beneficiaries, including a surviving spouse, a minor child of the owner, a disabled or chronically ill individual, and anyone less than ten years younger, get better treatment.

With the tax bill landing on a compressed timeline, the beneficiary you named a decade ago may no longer be the efficient choice.

Getting both tracks pointed in the same direction

An estate plan works when the will, the trust, and every beneficiary form tell one consistent story. Grant, Riffkin & Strauss, P.C. reviews designations alongside the governing documents so that a stale form doesn't quietly rewrite your intentions. If it has been more than a year since you last looked, or a marriage, divorce, or birth has happened since, Grant, Riffkin & Strauss, P.C. can walk through your accounts with you and put the paperwork in order.