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The will does not move the 401(k)

A will is a backup for stuff that has no beneficiary and no TOD/POD title. 401(k)s, IRAs, HSAs, and life insurance pay whoever is on the form. Bank POD and brokerage TOD skip probate the same way. If the form still lists an ex, or is blank, that is the plan — not the paragraph in the drawer.

Updated 2026-09-20 · 10 min read · Educational, not estate, tax, or legal advice. The afternoon sequence is the beneficiaries playbook. Inherited-clock math lives in the RMD primer.

Three pipes, one household

	Will / probate	Beneficiary form	TOD / POD title
What it moves	Untitled stuff, residue, guardianship	401(k), IRA, HSA, life insurance	Bank, credit union, brokerage; some cars and houses
Who wins	The will, after probate	The form (plus ERISA spouse on a 401(k))	The person on the registration
Probate?	Yes	Usually no	Usually no
Blank / missing	Intestacy statute	Plan default — often the estate, or the spouse	The asset is still in your name. Probate.
Minors	Guardian clause is the point	Custodian or trust on the form	Same problem — a child cannot usefully own it

People google “do I need a will” and treat the 401(k) as if the will already covered it. It did not. The form on file at Fidelity / Vanguard / the old employer plan is a contract. The will is not a party to that contract.

The 401(k) has a spouse default. The IRA usually does not.

Private-employer 401(k) and profit-sharing plans sit under ERISA. For a married participant, the surviving spouse is generally entitled to the full vested account unless that spouse consents in writing to a different beneficiary. The waiver has to meet the plan’s formalities — usually a notary or a plan representative — and it has to be signed after the wedding. A prenup is not that waiver. Courts have repeatedly said you cannot waive ERISA spousal rights before you are a spouse.

IRAs are a different statute. In most common-law states the IRA beneficiary form controls even if the will says otherwise, and there is no federal “spouse must sign” rule. Community-property states can still give the non-owner spouse an interest in contributions made with community funds. Do not assume the 401(k) rule and the IRA rule are twins. Confirm the plan document and, if the dollars are large, the state.

A job-change 401(k) rollover is a new account with a blank form. The old plan’s beneficiaries do not travel. Name them the week the IRA or new 401(k) posts, not “later.”

SECURE Act: who you name is a tax clock

For deaths after 2019, most non-spouse designated beneficiaries must empty an inherited IRA by December 31 of the year containing the 10th anniversary of death (SECURE Act; IRS Pub. 590-B). Eligible designated beneficiaries — surviving spouse, minor child of the owner, disabled or chronically ill individual, or someone not more than 10 years younger — can often stretch over life expectancy instead. A minor child’s stretch generally ends at majority (21 under the IRS rule), then a 10-year clock starts on the remainder.

If the original owner had already reached their required beginning date (age 73 if born 1951–59, 75 if born 1960+), annual RMDs may still apply in years 1–9 inside that 10-year empty. Inherited Roth IRAs still have the 10-year empty for most non-spouse beneficiaries even though the owner had no lifetime RMD. Do not rebuild the RMD guide here — that is the table. This page is who you put on the form so the table has a designated person to apply to.

Naming the estate, a charity as the only beneficiary, or a trust that fails the see-through test can knock the account out of “designated beneficiary” status. That is how a 10-year clock becomes a 5-year clock (death before RBD) or a ghost life-expectancy mess. “My estate” is not a shortcut. It is a downgrade.

TOD, POD, and the FDIC category

POD is usual bank and credit-union language: payable on death to the named person. TOD is usual brokerage language under the Uniform Transfer on Death Security Registration Act. Both pass outside probate. Neither pays debts the way a probate estate does, and neither names a guardian.

FDIC / NCUA insurance is per depositor, per insured institution, per ownership category. Single accounts at one bank share a $250,000 cap (12 U.S.C. § 1821(a)(1)). A POD / revocable-trust account is a different category. As of April 1, 2024, trust coverage is generally $250,000 per unique beneficiary, capped at $1,250,000 per owner at one bank for five or more beneficiaries. Run large piles through EDIE at FDIC.gov. Two logins at the same charter are still one bank. A brokerage cash sweep is not this limit.

Real estate TOD deeds and vehicle TOD titles are state statutes. Some states have them; some do not. A brokerage TOD button does not title the house. If the house is in one name and there is no TOD deed and no joint tenancy / tenancy by the entirety, it is a probate asset even if every IRA is perfect.

Minors, contingents, and the words on the form

Name a primary and a contingent. If the primary dies first and there is no contingent, many custodians pay the estate. “My kids” as a class is not always a class the recordkeeper can parse — some want named humans and a per-stirpes / per-capita election. Per stirpes: a deceased child’s share goes to that child’s children. Per capita: the surviving named people split what is left. Write the election the custodian actually offers, not a kitchen-table synonym.

A minor cannot own the account in a useful way. A UTMA custodian until 18 or 21, or a trust with a trustee who can hold retirement accounts, is how that money is actually held. Talk to an estate attorney before you type a 9-year-old’s name as 100% primary on a $400,000 IRA. That is not this classroom writing a trust.

Life, HSA, 529 — three different “beneficiary” words

Term life pays the named beneficiary. Group term at work often defaults to the spouse, and it vanishes when you leave the job. Recheck after a child, a house, or a divorce. Primer: term vs whole life.

An HSA surviving-spouse beneficiary can treat the HSA as their own. A non-spouse beneficiary: the HSA ceases to be an HSA, and the fair market value is generally included in that beneficiary’s income. Do not copy the 401(k) names onto the HSA without reading that sentence.

A 529 has an owner and a beneficiary. The beneficiary is who the education money is for; the successor owner is who keeps control if you die. Those are two fields. Changing a 529 beneficiary to another family member is a living gift-tax / Pub. 970 problem, not a TOD. See the 529 primer.

2026 estate tax is not why most people do this

The federal basic exclusion amount is $15 million per person for 2026 deaths and gifts (P.L. 119-21 §70106 / OBBBA; $13.99 million in 2025). A married couple with portability is $30 million. The annual gift-tax exclusion stays $19,000 per donor per recipient (Rev. Proc. 2025-32 §4.42(1)); non-citizen spouse annual exclusion $194,000. Direct tuition and medical payments to the provider still sit outside those numbers.

Most households that need this page are not a $15 million file. They are a titles file: a $420,000 401(k) that still names an ex, a blank IRA, a HYSA with no POD, a house in one name. State estate or inheritance taxes can still apply far below $15 million. Confirm the state. Do not skip the forms because “we’re under the federal exemption.”

You still want a will

Titles move titled assets. A will still names a guardian for minor children, directs the furniture and the unlabeled checking account, and catches the 401(k) you opened in 2014 and forgot. A revocable living trust is a different tool for probate avoidance on assets you actually retitle into it — an unfunded trust is a binder. Nobody in this classroom should skip the will because they added POD to the HYSA.

Questions

Keep reading

• Premium: one-afternoon titles audit (12-step)
• 401(k) rollover — new account, blank beneficiary form
• RMDs and the inherited 10-year clock
• Term vs whole life — the other named-beneficiary contract
• What net worth measures — titles are how the assets actually move

Educational only. Confirm the plan document, Pub. 590-B, ERISA spousal-consent rules, FDIC “Your Insured Deposits,” and a licensed estate attorney before you change titles. Written by Thomas Sanders.