Regular assets that go through probate are distributed according to the will or to state law if there is no will.
Some personal possessions of small monetary value may be able to be given to family or friends.
Non-probate assets generally have a beneficiary or joint owner, and the assets go directly to them.
If the beneficiary of a non-probate asset passes away before the owner, they become part of estate and are subject to probate.
After a loved one’s death, transferring all of their assets is an important step in wrapping up their affairs. An asset is anything that someone owns, whether it is money, real estate, art, a business, an investment, or even a debt that someone else owes them.
The handling of assets can be both logistically and emotionally complicated, so keeping a clear head and surrounding yourself with experts and people with your best interests at heart can help you navigate this moment smoothly.
Not everything that your loved one owned will have been included in their will. In fact, often many assets are not, and instead pass to named beneficiaries through other means.
If your loved one didn’t write a will, certain of their assets will be subject to state intestacy laws, but others may pass directly to beneficiaries without going through probate.
Here is an overview of those assets that typically become part of the probate process and those that do not.
Probate is the term for the legal process through which your loved one’s debts are paid off and their remaining assets are distributed to their heirs or beneficiaries of their will.
Generally speaking, there are two main groups of probate assets:
Titled assets include stocks, bonds, vehicles, real estate, boats, business interests, airplanes, and investment and bank accounts. In order to be included in the probate process, titled assets must be either owned solely by your loved one or co-owned with someone else in a type of ownership known as joint tenancy in common.
In tenancy-in-common ownership, which most frequently applies to real estate property, each owner owns a percentage of the asset. If your loved one owned part of an asset in a tenancy-in-common agreement, then the other person or people with whom they co-owned the property do not take over their share when they pass away. They simply maintain their percentage of ownership, while your loved one’s percentage becomes part of their estate and goes through probate.
Personal possessions can encompass a wide range of things, from clothing to art to jewelry to anything else your loved one may have collected over their lifetime.
Personal possessions may be included in a personal property memorandum, which is a companion document that accompanies the will. Any asset can be included in a personal property memorandum, except for real estate and intangible assets. Your loved one may have also included instructions as to how to distribute personal possessions in their will. In some states, a personal property memorandum is not recognized, so including these instructions in the will is necessary.
In the event that your loved one’s estate owes any debt, any assets, whether titled property or personal possessions, may need to be sold to cover the debt. Once the debt has been resolved, the remaining assets are distributed according to the instructions in the will.
Any solely owned property not specifically designated for particular beneficiaries in the will, even if it has a great deal of sentimental value but little monetary value, is considered part of your loved one's "residuary estate." After all the estate's debts are paid, these possessions will be divided according to the will's instructions. However, as this may often involve selling sentimental items to ensure a fair division, many families and other will beneficiaries instead choose to agree among themselves about who should get what. These are still probated possessions, however, and the executor of the estate must ensure this agreement is abided by.
If there is no will, the court will appoint an administrator to manage your loved one’s entire estate, including all personal possessions.
Some assets are not included in the probate process. These assets are not part of your loved one’s probate estate and will be taken care of separately. Non-probate assets include, but are not limited to:
Property owned jointly: If joint property is designated as “joint tenancy with right of survivorship” or “tenancy by the entirety” in the property title, these assets are transferred to the joint owner and are not subject to probate.
Beneficiary-named property or transferable-on-death (TOD) assets: Types of property with a named beneficiary may include life insurance policies, retirement funds (IRAs or 401(k)s), pensions, and investment accounts designated as transferable on death. Some states allow property to be designated as TOD in a deed or title as well.
All of these assets do not go through the probate process and will automatically be transferred to the named beneficiary once they present the correct documentation to the institution holding the assets or granting the benefit.
Payable-on-death (POD) assets: POD is an arrangement made between an account holder and their bank or other financial institution. It determines that when the person passes away, their financial assets are transferred to the listed beneficiary by the bank if they present proof of their identity and of the person's passing.
Assets titled in the name of a trust or that list a trust as a beneficiary: Some people choose to transfer their assets into a trust to bypass the probate process. One can transfer real property, vehicles, financial assets, and more into a trust. When someone opens a trust, they are required to name a trustee. This person is then responsible for maintaining these assets for the benefit of the trust's beneficiaries, and may keep them in the trust or pass them to the beneficiaries after the original owner's death, depending on the instructions in the trust.
One important thing to remember about non-probate assets is that if all of the beneficiaries of a particular asset die before your loved one, this asset becomes part of their estate and is subject to the probate process.
Navigating your loved one’s assets can be complicated and take a lot of time. You may find that using the services of an expert such as an accountant or an estate lawyer can help you make the most of the situation and minimize any emotional or familial backlash such administrative processes might bring up. Close friends or relatives who have recently gone through the process can also help you keep a clear head and make the right decisions.
Keep in mind that for some people, sorting through and distributing the assets of someone who has died can also be an incredibly cathartic process, allowing you and those around you to keep a part of your loved one with you. Whether it’s real estate, an art or book collection, a car, or clothing, your loved one’s assets can be reminders of how much they mattered and will continue to matter to you ●
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Whether or not your loved one left a will, you will need to make sure their property is passed on to the right people. With a will, inheritance will follow your loved one’s wishes; without it, state law will decide. Either way, following these rules will ensure that your loved one’s life and legacy are properly honored.