Probate vs. Non-Probate Assets

Posted By Law Offices of Steven M. Adler, PLLC || 13-Jan-2015

Probate Assets are any assets that are owned solely by the decedent and therefore, they become property of the estate of a decedent. These assets can include the following:

  • Real property that is owned solely by the decedent - title must be in the decedent's name only or held as a tenant in common. Some examples are a primary residence, vacation property or investment real estate;
  • Personal property, such as jewelry, furniture, art work, collectibles, and automobiles or other motor vehicles /vessels;
  • Bank accounts or safe deposit box contents that are solely in the decedent's name;
  • An interest in a partnership, corporation, or limited liability company;
  • Life insurance policies or brokerage accounts that names either the decedent or the estate as the beneficiary;
  • Royalties; and
  • Wrongful death and medical malpractice proceeds.

Non-Probate Assets are those assets that are not a part of the decedent's estate because they automatically pass to another by law upon the death of a decedent. The will does not control the distribution of non-probate property. Non-probate assets can include the following:

  • Assets owned jointly with another with rights of survivorship. Upon the passing of the decedent, these assets pass automatically to the other owner(s).
  • Community property such as a home a decedent held jointly with his/her spouse (tenants by the entirety) or property owned / held in joint tenancy with other family members, friends, associates or business partners;
  • Any asset placed into a revocable living trust or an irrevocable trust. Because the asset is not in the decedent's name at the time of death, it is not subject to probate.
  • Assets which a decedent retained a life estate, but transferred to another. Upon the death of the decedent, the life estate expires and the remainder interest passes automatically to the previously designated individual or entity.
  • Assets owned by a decedent, but payable to a designated beneficiary upon the death of the decedent. Such assets might include: pension accounts, 401 (k) / profit sharing accounts, in trust for accounts, life insurance policies, retirement accounts, annuities, or health savings accounts.

When dealing with assets of an estate or of a decedent, the determination of whether the assets are probate or non-probate assets is a key issue. Such classification determines whether the assets will be distributed pursuant to the will or by the State's laws of intestate succession on the one hand, or to the joint owner or named beneficiary on the other.