My mother passed away earlier this year and has named my brother as a beneficiary on an annuity. Her will states that any person named as a beneficiary or joint tenant was done for convenience only and that those assets shall be distributed in accordance with my last will and testament. Am I right to assume then that these assets will be included as part of the overall estate and factored into the division of the entire estate such assets? Meaning if she gave us 50% ea, do these assets get factored into that total 50% split?
oops - the division of the entire estates assets?
Estate Planning Attorney
I would encourage you to contact a knowledgeable probate attorney to review the Will and the account beneficiary designations in close detail. It is possible for a provision in a Will to supersede a beneficiary designation, but specific requirements must be met for the Will to control. You and your attorney will want to review the requirements of RCW 11.11.020 (a link is provided below for your convenience) to assist in evaluating how the law applies to your specific cirucumstances.
The above response is commentary regarding a general legal question. It is not intended to be legal advice specific to the reader's individual situation nor does it create an attorney-client relationship between the author and any reader. You are encouraged to contact a qualified and knowledgeable attorney to discuss your specific legal situation.
Perhaps this is a common thing in WA but it is not common in any state I practice or have every heard of. I think this is a monumentally stupid idea which is begging for litigation. Obviously it is too late to change it but that's my two cents. While It appears clear from your description I just do not like it. If the will is fairly simple and says split everything to the two of you, I don't see why it would have been that difficult to do a new beneficiary form that splits the annuities 50/50 at her death. It is literately a 1 page document. I hope for your sake your brother doesn't try to pull something...I think you would have a leg to stand on based on the will if he tried to keep it all but I regularly have told clients that as a general rule (and rules have exceptions!) beneficiary designations trump wills....your brother will have to receive the money and then write a check to you which one could argue is a gift from him to you.
This is not legal advice nor intended to create an attorney-client relationship. The information provided here is informational in nature only. This attorney may not be licensed in the jurisdiction which you have a question about so the answer could be only general in nature. Visit Steve Zelinger's website: http://www.stevenzelinger.com/
Elder Law Attorney
It depends. It is a fact specific question that whomever is advising you is going to have to see the documents and the dates.
A will can control the disposition of a nonprobate asset. However, if the beneficiary designation of a nonprobate was executed after the will, then it would cancel that will provision.
My recollection is that a annuity is not a "nonprobate" asset though that can be overruled by the Will by virtue of RCW 11.11.
I agree with Mr. Smith - RCW 11.11.020 does allow a will to control the nonprobate assets if certain criteria are met. You will need to have an attorney read over the document to know if it was drafted in such a way to accomplish this.
This posting is for informational purposes only. It is not legal advice, nor does it establish an attorney-client relationship. For more information, please visit www.justinelderlaw.com.