Legal Question in Wills and Trusts in New York

Would this legal phrasing apply to proceeds of a life insurance or retirement death benefit for someone who is deceased:
All the rest, residue and remainder of my property, both real and personal, of whatsoever nature and wheresoever situate, or to which I in any way may be entitled at the time of my deceased, I hereby direct my Executor to divide into 6 equal parts.
The retirement death benefit beneficiary was not one of the 6 people listed in the will. It’s my understanding that life insurance policies and retirement death benefits do not pass through a will, but separately. Is that correct or does the language quoted here supersede everything else.

Asked on 11/08/23, 8:37 am

2 Answers from Attorneys

Richard Bryan Richard Bryan Attorney PC

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The named beneficiary on an account gets the proceeds. No question about it, unless there are some crazy circumstances such as the beneficiary killed the insured, or it was a divorced spouse still on the plan as beneficiary. There could be other circumstances where the beneficiary wouldn't get the death benefit, but I can't think of any others.

It's not so much that one set of instructions overrides the other, but more that accounts with named beneficiaries, or "transfer on death" or "payable on death" designees, are considered "non-probate assets," and so they're not covered by a Last Will and Testament. The words "all the rest, residue and remainder of my property . . ." in the Will refers only to property which gets distributed according to the Will, which is called "probate property." Property with named beneficiaries passes "by operation of law" to the beneficiary, and is not "probate property." Hope that helps.

Good luck.

Answered on 11/08/23, 9:49 pm

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