What property is controlled by my will?

  1. General Rule Your will generally controls how the assets owned by you at the time of your death are distributed. The assets controlled by your will are referred to as “probate assets,” because a probate proceeding is necessary for the transfer of title to these assets.
  2. Exceptions The assets which are not controlled by your will are referred to as “non-probate assets,” because no probate proceeding is necessary for the transfer of title to these assets, and they include the following:
    1. Assets Passing by Contract.  Proceeds from life insurance, IRAs, 401(K) plans, and other accounts that allow you to designate a beneficiary will be given to the beneficiaries you have designated. At the same time you execute your will, you should review the beneficiaries you have designated to make sure that these designations correctly reflect your wishes.
    2. Joint Tenancy.  Any asset you own with another person in joint tenancy with right of survivorship (sometimes abbreviated “JTWROS”) is not controlled by your will. Instead the surviving joint tenant has full ownership of that asset on the death of the other joint tenant.
    3. Community Property.  Your will controls the disposition of all of your separate property (defined below), but only controls the disposition of your one-half (1/2) of community property (defined below). Thus, even if the will of a deceased spouse purports to give all of his or her community property assets to a child from a prior marriage, the surviving spouse still retains his or her one-half (1/2) interest in the community property and the child only inherits the other one-half (1/2) interest.
      1. In Texas all property acquired by either spouse during marriage is community property, except for the following, which is separate property:
        1. property owned by spouse before marriage;
        2. property acquired by spouse during marriage by gift or inheritance (as long as it is not co-mingled thereafter with community property so that it can no longer be traced and identified as separate property); and
        3. recovery for personal injuries sustained by spouse during marriage, except recovery for loss of earning capacity during marriage.
      2. The presumption that all assets acquired during marriage are community property can be overcome only by clear and convincing evidence.
    4. Tenants in Common.  Any asset you own as a tenant in common with another person (with no right of survivorship) is controlled by your will only to the extent of a one-half (1/2) interest in such asset.
    5. Property Held in Trust.  Assets which you have transferred into a living trust are not controlled by your will. The terms of the living trust will determine how these non-probate assets will be distributed.
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