The Legal Corner by Sam A. Moak: Keep Tabs on Nonprobate Assets

Featured Articles Guides The Legal Corner

The information in this column is not intended as legal advice but to provide a general understanding of the law.  Any readers with a legal problem, including those whose questions are addressed here, should consult an attorney for advice on their particular circumstances.

A common nonprobate asset is an investment account with either a named beneficiary or designated to transfer on death.  When you name beneficiaries for non-probate assets, it can have various implications for each person. The outcome may vary based on individual circumstances and goals.

It is important to understand that there could be potential downsides to this decision and it’s crucial to consider your specific situation carefully to avoid these common beneficiary issues:

Outdated Beneficiary Choices

The most common disadvantage is failing to review beneficiary choices regularly to assess whether they still meet your requirements or adjust to any changes that have occurred in your life. For example, perhaps you designated your spouse as the primary beneficiary of your retirement accounts and other non-probate assets. However, if you go through a divorce and forget to change these designations, your ex-spouse could still end up with a significant portion of these assets.

Another example may be where new relationships develop that did not exist when you initially made beneficiary designations. For example, you have had more children or remarried. Should you fail to update your estate plan, you may inadvertently omit these loved ones from receiving a share of these assets when you really would have wanted them to receive something.

Failure to Name a Contingent Beneficiary

A related issue is failing to name secondary or contingent beneficiaries. What happens if you do not have a “backup” beneficiary? One of the main disadvantages is that an asset that could typically pass directly to persons outside of probate may now become an asset that has to be addressed through the probate process. This can create a long delay before those assets get to your loved ones.

Minor Beneficiaries

Disadvantages can also arise if you name a minor as a beneficiary and that person is still a minor when you die. If this happens, an insurance company or retirement administrator may not have a way to handle the situation. It would be unable to distribute the funds until it receives directions from a court, or the minor reaches the age of majority (age 18 in most states).

If you find the need to make adjustments to your beneficiaries, don’t hesitate to contact your certified financial planner or an attorney familiar with estate planning. They should be able to assist you in finding the most suitable solutions for your situation.

Sam A. Moak is an attorney with the Huntsville law firm of Moak & Moak, P.C.  He is licensed to practice in all fields of law by the Supreme Court of Texas, is a Member of the State Bar College, and is a member of the Real Estate, Probate and Trust Law Section of the State Bar of©