Probate is a court-supervised process that validates a deceased individual’s will and oversees the administration of that person’s estate. The probate court may only distribute property that was solely owned by the deceased individual. In other words, some assets, such as property that was owned jointly, are not subject to the probate process. In this article, we examine different types of property that may or may not go through probate.
Assets That Go Through Probate
Any personal property or real estate that a decedent owned in his or her name before death must go through probate. This includes separate property that the deceased party obtained prior to marriage or during marriage.
Practically any type of solely owned asset can be subject to probate, including real estate, vehicles, art, furniture, household goods, boats, and more. In addition, probate assets can include intangible items, such as:
- Money in savings or checking accounts
- Stocks
- Business interests
- Other similar items
Further, intellectual property rights, such as patents, trademarks, or copyrights, can also be considered probate assets.
In addition to separate property, one-half of the deceased party’s community property is subject to probate, as is the deceased party’s share of property owned as tenants in common with other people.
Assets That Don’t Go Through Probate
In addition to property that is owned in joint tenancy, the following types of property are not subject to the probate process:
Trust assets: Most trust property is not subject to probate. The reason for this is that after a person’s property is transferred into a trust, the trust becomes the legal owner of the property. Therefore, the probate court has no authority to manage it or distribute it to beneficiaries.
Retirement accounts: Most types of retirement accounts, such as IRAs and 401ks, have a beneficiary designation. In other words, when creating these types of accounts, you appoint one or more individuals as beneficiaries. When you pass away, ownership of each account automatically passes to the named beneficiaries. These types of retirement accounts are generally not subject to the probate process.
Trustee accounts: Assets that are held in a credit unit or bank can be excluded from the probate process when the deceased party was named as a conservator, guardian, or trustee for another person.
POD accounts: Assets that have a pay on death designation are often referred to as POD accounts. POD accounts and securities accounts that are registered as transfer on death accounts are excluded from the probate process.
Life estate: Finally, any life estate interest that is owned by the deceased party will terminate upon his or her death and will not be subject to the probate process. For example, if a decedent had a life estate interest in a family-owned piece of real property, then he or she would have the right to reside in the property until his or her death. Upon that person’s death, his or her ownership interest would terminate and not be distributed via the probate process.
Contact a Probate Administration Attorney
If you need probate administration assistance, the experienced attorneys of Biddle Law are here to help. At Biddle Law, we are highly experienced in all facets of probate administration. Please contact us today to schedule a consultation with an experienced probate administration attorney.