A will is a revocable, ambulatory instrument that speaks at death and disposes only of the probate estate — property titled in the decedent's sole name with no operative beneficiary designation or survivorship feature. The modern reality is that most wealth transfers outside probate through will substitutes, so a will often governs a minority of the client's assets. Coordinating the will with the nonprobate regime is the drafting work that actually determines who receives what.
Probate property passes under the will (or, in its absence, the intestacy statute) through court-supervised administration. Nonprobate property passes by operation of law or contract at the moment of death, bypassing the will entirely.
- Nonprobate by survivorship: joint tenancy with right of survivorship and tenancy by the entirety.
- Nonprobate by contract: life insurance, annuities, and retirement accounts with a named beneficiary.
- Nonprobate by designation: POD (payable-on-death) bank accounts and TOD (transfer-on-death) securities and, in many states, TOD real property deeds.
- Nonprobate by trust: assets titled in a funded revocable or irrevocable trust.
The coordination trap
A specific bequest in the will cannot override a conflicting beneficiary designation. A will leaving 'all my accounts equally to my children' does nothing to an IRA that names one child. Audit titling and designations against the dispositive plan, not just the will.
A valid attested will requires a writing, signature by the testator (or by another at the testator's direction and in the testator's presence), and attestation by witnesses — typically two — who sign in the manner the governing statute requires. Formalities are jurisdiction-specific; see the state execution formalities article and the interactive lookup.
- A self-proving affidavit executed before a notary lets the will be admitted without live witness testimony and is standard practice in most states.
- Holographic (handwritten, unwitnessed) wills are recognized in roughly half the states, with material-provisions and signature requirements that vary.
- The harmless-error / substantial-compliance doctrine (UPC 2-503) lets some courts probate a defectively executed writing on clear-and-convincing evidence of testamentary intent, but relying on it is malpractice-adjacent.
Key takeaways
- A will controls only the probate estate; will substitutes usually control the majority of wealth.
- Beneficiary designations and survivorship titling trump the will — coordinate them deliberately.
- Prefer a full restatement to a codicil, and use a self-proving affidavit as a matter of course.
- Always include a residuary clause with an ultimate taker and an explicit tax apportionment clause.
Authorities
- Uniform Probate Code Art. II (esp. 2-502, 2-503, 2-513) — Execution, harmless error, and tangible-property memoranda.
- Uniform Simultaneous Death Act — 120-hour survival default in enacting states.
- Restatement (Third) of Property: Wills and Other Donative Transfers