Also known as: nontestamentary device · non-testamentary devices · non-testamentary device · will substitutes · nonprobate transfers
Written by attorneys · grounded in primary & secondary sources — see below
Arrangements respecting property or contract rights established during the donor's life under which the right to possession or enjoyment of the property or to a contractual payment shifts outside of probate to the donee at the donor's death while the donor retains substantial lifetime rights of dominion, control, possession, or enjoyment.
Noreen Nguyen held a joint tenancy bank account with her spouse at the time of his death. Upon his predeceasing her, the account balance was valued immediately before death for purposes of calculating her elective share amount under the augmented estate rules. The valuation treated the account as a nontestamentary device passing outside probate.
Nia Nkosi received life insurance proceeds as a nontestamentary transfer upon her spouse's death. When the elective share remained unsatisfied after applying probate assets, the proceeds were applied first to satisfy the remaining balance before reaching other nonprobate recipients.
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Nalini Narula and two siblings each received separate payable-on-death accounts from their parent's nontestamentary transfers. After probate assets and certain nonprobate interests failed to satisfy the surviving spouse's elective share, liability for the shortfall was apportioned among the siblings in proportion to the value of their respective accounts.
Nontestamentary devices need not comply with the statutory formalities required for wills because they serve the function of a will while retaining substantial lifetime control by the donor.
Yes. Joint tenancy with right of survivorship passes property outside probate upon the death of a co-owner and is frequently used as a will substitute.
Certain nontestamentary transfers by the decedent to others are included in the augmented estate and may be applied to satisfy an unsatisfied elective share amount, with liability apportioned among recipients in proportion to their interests.
…light of settlor’s contemporaneous execution of interrelated will). As one law review commentator has noted, “[t]ransferors use will substitutes to avoid probate, not to avoid the subsidiary law of wills. The subsidiary rules are the product of centuries of legal experience in attempting to discern transferors’ wishes and suppress…