Estate Planning Basics: Wills, Intestacy, and Probate
A form you filled in once, years ago, when you opened an account, can override the will you paid a lawyer to draft. Most people don't know which of their assets their will actually governs — and the answer is usually 'fewer than you'd think'.
Three channels, and the will is the last one
Your assets don't all travel the same way when you die. They sort themselves into three channels, and the order matters because each one takes what it claims before the next gets a look.
A contract beneficiary comes first. Retirement accounts, life insurance and transfer-on-death or payable-on-death registrations pay whoever the form names, directly, by contract. Jointly titled property comes next: a house held in joint tenancy with right of survivorship passes to the surviving owner by operation of law.
Only what's left over is governed by your will, and only that portion goes through probate. So 'I have a will' and 'my estate avoids probate' are unrelated statements — and an out-of-date beneficiary form doesn't compete with your will, it simply gets there first.
Beneficiary form → joint title → will. The will governs the remainder, not the estate.
What probate is, and what happens without a will
Probate is the court process that validates a will, settles debts and transfers what's left. It's public, so the inventory of assets and who received them becomes a matter of record, and it takes months — often a year or more where there's property to sell or a creditor-claim period to wait out.
Die without a will and you die intestate, which doesn't mean the state takes your assets. It means your state's intestacy statute writes your will for you, distributing to spouse, children and blood relatives in a fixed order.
That default is a poor fit for a lot of modern lives. Unmarried partners typically inherit nothing. Stepchildren you raised but never adopted typically inherit nothing. And where minor children are involved, the court — rather than you — chooses their guardian, which is usually the part that persuades people to write the document.
Assets move by three separate channels: contract beneficiary forms, joint titling, and the will. The will only governs what the first two didn't already claim, which is why an unreviewed beneficiary form quietly outranks it.
Sources
- Estate Planning Resources (Real Property, Trust and Estate Law Section) — American Bar Association (2026)