Law Offices of Roshni T. Desai
Long-term Planning For Orange County

Which of your assets are subject to probate?

Probate is the legal process where the will of a deceased person is validated and assets are passed on to living beneficiaries. This process also satisfies the debts and taxes of the deceased through an executor. Proceeds from life insurance, bank accounts that are payable at the time of death, certain retirement accounts and real estate ownership accounts will go directly to beneficiaries and do not go through probate. All other property from the deceased will be included in the probate estate.

If you are preparing your estate for end of life circumstances, your estate will comprise of all the assets you own at the time of your death. Everything in your estate will be subject to the probate court proceeding where the assets will be passed on to the rightful heirs. Here are common types of probate assets:

Individual assets

All assets that are solely in your name without a payable-on-death designation or co-owned. This would include your bank and investment accounts, cars, boats, airplanes, stocks and real estate. It can also include smaller personal property such as electronics, memorabilia, antiques or artwork.

No beneficiary or pre-deceased beneficiary

An asset that had a designation of payable-on-death can become part of probate if the beneficiary died before you do. Typically, these assets include medical or health savings accounts, life insurance policies, annuities and retirement accounts. If this happens, those assets will go into probate with the rest of your assets. This will also happen if there was no beneficiary designation on those items.

Assets not in a trust

Assets in a trust are not subject to probate. Sometimes however, with the accumulation of more assets you may neglect to move them into the trust. These assets can be moved into the trust after your death through a pour-over will, but the assets will still be subject to probate.

Tenants-in-Common Property

When you own property as a co-owner with someone else, usually real estate, you will have a tenant-in-common asset. This can also include vehicles, bank and investment accounts or stocks and bonds. These assets are not the same as rights of survivorship where property passes directly to the person when the owner passes away.

When you pass away, it is likely that your assets will need to pass through probate prior to distribution. If you have questions about what assets must go through probate and which ones don't, you should learn more about the process by speaking with an attorney.

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