An important part of estate planning is understanding what your assets are and which assets are subject to probate (“Probate Assets”) versus which are not subject to probate (“Non-Probate Assets”).
Probate Assets are assets that are controlled by the terms of a Will and must go through the courts in the probate process. Non-Probate assets are those that pass directly to beneficiaries without a Will or court proceedings. A non-probate asset is usually considered an independent contract between the institution and the named party.
Non-Probate assets include:
- Life Insurance Policies
- Retirement Accounts (401(k), IRA, Pension Plans, etc.)
- Joint Accounts (see our article on Jointly Held Accounts for more information)
- Payable On Death or Transferable On Death accounts
- Property held Joint with Right of Survivorship, Joint Tenancy, or Life Estate
- Property held in Trusts
- Gifts made during the life of the deceased
However, all of the above assets must have a named beneficiary other than the “Estate” to pass outside of probate. If an asset has no beneficiary designation or if the beneficiary is the “Estate”, it will pass to the estate and be subject to the probate process.
The question often comes up, why don’t I just name a child on my house, bank account, or other asset, to avoid probate? Naming a child jointly on an account can have unintended consequences. First, that person now has complete access to that account. They are a joint owner, meaning they can access all of the funds at any time without your permission. Second, if that individual were ever sued or filed for bankruptcy, your account would be seen as their asset and could become subject to the lawsuit or bankruptcy. Third, if you have multiple children, although your Will and intention may be to leave a bank account equally to all of your children, if only one child is a joint owner on your account, then that account will pass to that child, and that child only, and not be divided among all of your children.
You should also consider taxes when adding a joint owner. See our article on “Step-up Basis” to get more information on the tax consequences of a jointly held property. For some families the best plan is one that avoids probate while for others, a Wills-based plan is the best option. Call us today at (678) 781-9230 to schedule an appointment and discuss your assets and the plan that is best for your circumstances.
Disclaimer
This Blog/Web Site is made available for educational purposes only as well as to give you general information and a general understanding of the law, not to provide legal advice. By using this blog site you understand that there is no attorney client relationship between you and Grissom Law, LLC.