Methods of Property Transfer at Death

ESTATE PLANNING ESSENTIALS

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The Five Methods of Transferring Property at Death

By Justin J. Wall, Esq.

Bar Licensed Trusts & Estates Attorney

Utah and Arizona

What happens to my stuff when I die? It’s a blunt question, but an important one that everyone needs to ask sooner or later. Whether your planning your own estate or helping a loved one figure it all out, understanding the available methods to legally transfer assets is essential to getting started.

An estate includes everything from your home to your bank account, your vehicle to your household items. In other words, just about everybody has an estate.

The law provides distinct ways for your estate to transfer to beneficiaries. This article goes through the five methods for transferring your property at death.

Right of Survivorship: Automatic Transfer between Co-Owners

If property is owned by more than one person, it can be owned with or without “Right of Survivorship.” If jointly owned property is held with right of survivorship, this rule allows jointly owned property to pass automatically to the surviving co-owner(s) when one owner dies. If the property is held without right of survivorship, then the share of a deceased joint owner goes under the governing rules related to that owner’s estate (often by will or intestacy – see below).

The distinguishing feature of a Right of Survivorship is partial ownership of an asset during life, with an agreement that the share will go to the surviving joint tenants at death. Importantly, Right of Survivorship is available only to co-owners of the property. There is no such thing as a right of survivorship to a non-owner – this would be a beneficiary designation. See below.

Unlike assets that go through probate or follow the terms of a will, property with right of survivorship doesn’t pause for legal review in the courts—it shifts to the surviving owner by operation of law. This feature is designed to simplify the transfer of ownership, particularly in close personal relationships like spouses, domestic partners, or family members.

Right of Survivorship is often praised for its simplicity, speed and cost-effectiveness, but it also raises serious planning considerations. For example, in some cases, the automatic transfer doesn’t match the deceased person’s broader estate plan, and may go against the decedent’s wishes. This is particularly true in a mixed-family context – often, one spouse will own real estate and the other will bring very little to the marriage. In those cases, the decision of how to transfer the home when the first spouse dies needs to be carefully considered. There may also be specific asset protection and tax issues that will need to be discussed with a qualified estate attorney.

Right of survivorship is often ideal for married couples or long-term partners who want the surviving person to automatically inherit shared property. Whether it’s a home, bank account, or investment account, survivorship ensures the surviving spouse has uninterrupted access and legal ownership—without the time and expense of probate. It’s simple, reliable, and aligns with most couples’ natural intent to leave everything to each other.

Survivorship is especially useful when speed matters. Take a married couple’s day-to-day checking account, for example. If the surviving spouse needs instant access to funds to pay bills, manage property, or handle funeral expenses, the right of survivorship on the account bypasses probate delays and court filings, allowing the surviving joint owner access to the account immediately, if needed. In contrast, probate can take weeks or months, leaving critical resources tied up in the meantime.

Rights of survivorship can take several forms. The most widely used form is Joint Tenancy with Right of Survivorship (JTWROS), which gives each owner an equal interest in the property and provides for automatic inheritance by the survivor(s). Joint Tenancy with Right of Survivorship can be used for homes, investment accounts, or bank accounts, and is popular among married couples.

A second form, Tenancy by the Entirety, is a special type of joint ownership available exclusively to married couples in certain states. It includes survivorship rights but also adds creditor protection—meaning one spouse’s creditors generally can’t seize the property.

Lastly, in some community property states like Arizona or Texas, spouses can hold assets as Community Property with Right of Survivorship, which combines the automatic inheritance feature with favorable tax treatment, including a full step-up in basis on the entire property at death. However, if joint ownership is structured without survivorship — such as a “tenancy in common”— the deceased owner’s share does not pass automatically but instead goes through probate. For this reason, it’s critical to know how title is held.

Beneficiary Designations: Transfer Triggered by Death

A beneficiary designation is a legal mechanism that allows you to name specific individuals or entities to receive certain assets directly upon your death—outside of your will and without going through probate. These designations are common on life insurance policies, retirement accounts (like IRAs and 401(k)s), annuities, and financial accounts with “Payable-on-Death” (POD) or “Transfer-on-Death” (TOD) features.

When you complete a beneficiary form with a financial institution, they will typically ask you to name your beneficiaries. That designation becomes a binding contract. Upon your death, the company simply transfers the funds or account ownership to the named beneficiary, no court approval required. This makes beneficiary designations one of the fastest, most efficient ways to pass assets to your loved ones—but only if they’re kept current and properly coordinated with your overall estate plan.

Beneficiary designations are most commonly associated with life insurance and retirement accounts, including traditional and Roth IRAs, 401(k)s, 403(b)s, and pensions. These are considered “non-probate” assets because they transfer by contract rather than through a will or trust. Most bank accounts, brokerage accounts, and certificates of deposit now allow you to name a POD or TOD beneficiary, giving you similar flexibility. Some states also allow Transfer-on-Death Deeds for real estate, letting you name a beneficiary for your home. Similar mechanisms may be available for business interests, vehicles, and virtually any other asset you can name. These tools are powerful because they are easy to set up, avoid probate, and ensure assets go exactly where you want them—if your paperwork is in order.

Despite their simplicity, beneficiary designations can cause major problems if handled carelessly. One common issue is failing to name a contingent (backup) beneficiary. If your primary beneficiary dies before you and you haven’t named a secondary, the asset could end up going through probate anyway. Another pitfall is naming minor children as direct beneficiaries—doing so can trigger expensive court guardianship proceedings since minors can’t legally manage inherited assets. Finally, if your beneficiary designations conflict with your will or trust, it can create confusion, delay, and tension among heirs. The key is coordination—all parts of your estate plan should work together to reflect your true wishes.

One of the most important aspects of beneficiary designations is that they override your will. If your will says your 401(k) should be divided equally among your children but your account still names your ex-spouse as the beneficiary, the ex-spouse may get the money—regardless of your current wishes. This can be especially problematic after divorces, remarriages, or family estrangements. Absent some case-specific statutory override provision, courts typically uphold the written designation on file with the financial institution. Even when there’s strong evidence that the decedent intended something else, the evidence cannot be enforced without a lengthy, uphill legal battle. Regular review and updating of beneficiary designations is a vital part of responsible estate planning.

Trust: Transferring Title Without Transferring Control

A revocable trust is a legal arrangement in which a person (the grantor or settlor) places assets into a trust during their lifetime, retaining full control over those assets while alive. As the name implies, the trust is revocable, meaning the grantor can amend, add to, or revoke it entirely at any time. Upon the grantor’s death or incapacity, a successor trustee (named in the document) takes over management and distributes the assets according to the terms of the trust. Because the trust owns the assets—not the individual—the property inside the trust avoids probate and is administered privately, outside of court supervision. This makes revocable trusts a powerful estate planning tool for those seeking flexibility, control, and efficiency.

One of the key advantages of a revocable trust is probate avoidance. Assets held in the trust pass to beneficiaries without the need for court involvement, which can save time, money, and headaches for surviving family members. Trusts also offer privacy. Unlike wills, which become public record during probate, trust terms remain confidential.

Another major benefit is continuity of management during incapacity. If the grantor becomes disabled or mentally incompetent, the successor trustee can step in and manage the assets without the need for a court-appointed conservatorship. Finally, trusts allow for customized control over when and how beneficiaries receive their inheritance. This is especially useful for beneficiaries who are minors, financially inexperienced, or have special needs. It can also be useful if you want to protect the inheritance against a possible lawsuit, a divorce, or another financial crisis your beneficiary may experience during his or her lifetime.

A revocable trust is a good fit for individuals and families who want to streamline estate administration, maintain privacy, and plan ahead for potential incapacity. It’s especially valuable for those with property in multiple states (to avoid multiple probates), blended families (to reduce conflict), or long-term care planning concerns.

There is no generally accepted standard for when to know you need a revocable trust. Revocable trusts offer flexibility that a will alone cannot match, and for many – even those with modest or small estates – the peace of mind is worth the extra cost. The question whether a Trust is needed is a subjective one, so it’s important to know specifically what a Trust can do that other planning tools cannot.

One of the most powerful advantages of a revocable trust is the ability to control the timing, conditions, and structure of asset distribution long after death. While right of survivorship and beneficiary designations transfer assets instantly, and wills and intestacy distribute property according to fixed legal rules, a revocable trust allows for highly customized planning. For example, you can direct that a child receive one-third of their inheritance at age 25, another portion at 30, and the remainder at 35, with the trustee managing the funds in the meantime.

You can provide ongoing support for a loved one with special needs without disrupting their government benefits, or hold assets in trust for a beneficiary struggling with addiction, divorce, or financial instability.

You can even set conditions—such as graduating from college or reaching a certain milestone—before distributions occur. Many will disallow any inheritance before a certain age and then allow an inheritance subject to creditor-protected provisions for the remainder of a child’s life.

None of these options are possible with a will alone, and certainly not with automatic transfer mechanisms like survivorship or beneficiary designations. In short, revocable trusts offer control beyond the grave, making them an essential tool for more thoughtful, long-term estate planning.

Importantly, the trust can be integrated with other planning tools—like beneficiary designations and right of survivorship—to create a coordinated and efficient estate plan that reflects your wishes and protects your loved ones. The best legal position for many estates will often include a Trust.

To make a revocable trust effective, the grantor must fund it—meaning they must retitle their assets in the name of the trust. This might include transferring ownership of real estate, bank accounts, investment accounts, and personal property. Assets not retitled into the trust will not be governed by its terms and may still need to go through probate. Typically, the grantor serves as both the trustee and beneficiary during their lifetime, which allows them to manage trust property as if it were still in their name. Upon death, the successor trustee takes over and follows the trust’s instructions, such as distributing property to heirs, holding assets in further trust for minor children, or making charitable gifts. This seamless transition avoids the delays and costs associated with probate and can provide ongoing management for beneficiaries who need it.

Transfer by Will (Testate Succession)

A will, formally known as a last will and testament, is a legal document that directs how a person’s property should be distributed after their death. It allows you to name your beneficiaries, designate a guardian for minor children, and appoint an executor—the person responsible for carrying out your wishes.

However, a will only governs probate assets—property held in your individual name without a beneficiary designation or survivorship rights. That means assets like jointly owned homes or retirement accounts with beneficiaries pass outside of the will’s control. Still, for assets that do go through probate, the will acts as a roadmap for the court and the executor, helping ensure your intentions are honored.

When someone dies with a will, their estate typically goes through probate, which is a court-supervised process for verifying the will, paying debts and taxes, and distributing assets. Probate can vary greatly by state—in some places, it’s relatively quick and inexpensive; in others, it’s time-consuming and costly. The executor files the will with the court, notifies heirs and creditors, gathers and values assets, and eventually distributes property according to the will’s instructions. While probate provides structure and oversight, it also makes the estate a matter of public record and can cause delays in access to funds. For that reason, many people use wills in combination with non-probate tools like trusts or beneficiary designations to streamline the process while still retaining the will’s benefits—particularly for naming guardians and handling assets not otherwise accounted for.

A will is especially useful for individuals with simple estates or those who want to make sure certain legal decisions—like guardianship for minor children—are clearly stated and legally enforceable. It also plays an important role as a backstop in a more complex estate plan. For example, even if you use a revocable trust to avoid probate, a pour-over will is typically used to ensure any assets not titled in the trust still get transferred into it after your death. Wills are flexible and relatively easy to draft and update, making them accessible to most people. That said, they don’t provide privacy, they offer no asset protection during life or after death, and they don’t help avoid probate unless paired with other tools. Still, as a foundational document, a well-drafted will is a critical part of any comprehensive estate plan—even if it’s not the only piece.

Transfer by Intestacy (No Will)

Intestacy is the legal process that takes place when someone dies without a valid will. In such cases, state law—not the decedent—determines who inherits their property. These laws, called intestate succession statutes, follow a strict formula based on family relationships. Typically, the surviving spouse and biological or adopted children are first in line, followed by parents, siblings, nieces and nephews, and more distant relatives. If no legal heirs can be found, the estate may eventually “escheat,” or be forfeit, to the state government.

When someone dies intestate, the probate court appoints a personal representative to act as administrator of the estate. This person is responsible for gathering and inventorying the decedent’s assets, paying off debts and taxes, and distributing the remaining property according to the statutory order of heirs. The process is public, court-supervised, and can take several months or even years.

One of the major downsides of intestacy is that it provides no room for personal wishes or custom planning. It does not account for stepchildren, long-term partners, friends, or charitable intentions unless they happen to fall within the state’s definition of a legal heir. It is, almost by definition, the plan given to you if you fail to create an estate plan at all.

When someone dies intestate, the probate court appoints a personal representative (often a surviving family member) to act as administrator of the estate. This person is responsible for gathering and inventorying the decedent’s assets, paying off debts and taxes, and distributing the remaining property according to the statutory order of heirs. The process is public, court-supervised, and can take several months—or even years—for complex estates. One of the major downsides of intestacy is that it provides no room for personal wishes or custom planning. It does not account for stepchildren, long-term partners, friends, or charitable intentions unless they happen to fall within the state’s definition of a legal heir.

Understanding the five legal methods of transferring assets at death is more than an academic exercise—it’s essential for creating an estate plan that actually works. Each method has its own strengths, limitations, and proper place in a well-rounded strategy. Used intentionally and in coordination, tools like right of survivorship, beneficiary designations, trusts, wills, and even the intestacy fallback can help ensure your wishes are honored, your loved ones are protected, and your estate is settled efficiently. The key is not just knowing what these tools do, but making sure they align with your goals, your family’s needs, and each other. A thoughtful plan today can prevent confusion and conflict tomorrow—and that peace of mind is worth every bit of effort.

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Review your existing accounts, property titles, and estate documents to make sure they work together—and reflect your current wishes. If you're unsure where to start, consult with an estate planning attorney who can help you build a coordinated plan tailored to your goals. A little planning now can make a big difference later.