Does Your Will Supersede Other Legal Documents?

Nearly everyone needs a last will and testament. As an estate planning attorney, I can say that with confidence. But the will is often a misunderstood document. For example, it is useful in ways that people do not understand, such as designating backup guardians for minor children. Another area of confusion is what happens when other legal documents disagree with a will. So let’s look at some of the most common areas of conflict.

Does a will supersede a joint bank account?

No, a will does not supersede a joint bank account.

In Florida, a joint bank account is presumed to include a right of survivorship. This means that when one joint owner of the account dies, the other automatically owns everything in the account. This happens without using a will or the probate courts. Even if the person who dies included the bank account in a will, that portion of the will is disregarded because the account is now fully owned by the surviving account holder. The only way around this is to claim fraud, undue influence, or clear and convincing evidence of a contrary intent, all of which are difficult to prove.

Does a will supersede a deed?

No, a will does not supersede a deed.

Deeds can be used as an estate planning tool. This is done by splitting up ownership of land into two interests: a life estate and a remainder interest. The person with the life estate gets to have and use the property during their life. But at death, the property automatically passes to the person with the remainder interest. This happens without a will or probate process, which makes it a great tool for estate planning. In Florida, this is typically done with a lady bird deed.

Immediately after the deed is used to transfer the remainder interest to someone, that person now owns an interest in the property. And after the death of the grantor (the person who keeps the life estate interest), the remainder interest transforms into full ownership. Because the interest was already gifted away, the will has no say over what happens to the property. The property is not part of the probate estate because it was given away. Thus, the deed supersedes the will.

Does a will supersede a divorce decree?

No, a will does not supersede a divorce decree.

In Florida after a divorce, any gifts to a spouse in a will are presumed to be null and void. This presumption stays in place unless the testator reaffirmed the testamentary gift after the divorce. This would be done by executing a new will or codicil that still names the ex-spouse as receiving a gift.

Does a will supersede a power of attorney?

Yes, a will supersedes a power of attorney. The power of attorney stops being effective the moment of death. The will then takes over, and a personal representative is named to manage the affairs of the estate.

Does a will supersede beneficiary designations?

No, a will does not supersede beneficiary designations.

Often retirement accounts, life insurance policies, and investment accounts allow you to designate someone as the beneficiary if you pass away. If you name no one, then the assets will simply move into your estate and be governed by your will. However, if you do name beneficiaries, then the beneficiary designations will be used regardless of what is stated in your will.