Are All Assets Subject to Probate?

When a loved one passes away and leaves you to assume the responsibility of dividing his or her estate, you are undertaking a hard and complicated job. Some decedents may leave a very specific will which will help you to divide his or her fortune quickly and without many hang-ups. Yet for those decedents who were not specific in their last will and testament or failed to produce a clear plan for where they want their fortune to go, the items in their estate will need to be divided in the probate process. This can often take a lot of time and become a very difficult process, but it is better than letting family members haggle and argue over the items in an estate without any assistance.

Only items that are held in a decedent’s name and do not have a designated beneficiary at the time of the death need to undergo probate. This means that if a will specifically states that Junior will inherit the family car, or that Mary will inherit her mother’s jewelry, that these items will not be subject to probate. Still, there are many times that people fail to make their wills that clear. Oftentimes elderly individuals will simply list that all of their estate be divided among their children. For young men and women, there may not even be a will because they were not expecting a sudden death. In these situations, probate is necessary to ensure that everyone gets a fair slice of the estate.

A few examples of items that are subject to probate are as follows. For one, anything that a decedent inherited from another decedent and is separate property must undergo probate. As well, if the decedent owns a home and has one-half interest in community property, this will be subject to probate. If the decedent as an IRA or a Keogh Plan for his or her beneficiaries then this may be subject to probate in certain circumstances. As well, if a decedent has interest in a vacation home, an airplane, or a boat, with other joint owners the property or item will be subject to probate due to the fact that there are other owners invested in it. This also happens when a residency is shared by roommates.

Also, any life insurance policies that are simply willed to “the estate” are subject to probate. There are a lot of items that are not subject to probate, however, Among these are any bank accounts that are willed to a child, a car that is owned by a joint tenant, or a decedent’s securities account that is transferrable upon death to a trustee. Also, any property that is subject to a community property agreement and is transferrable to a surviving spouse will not need to undergo probate and many life insurance policies that come with a named beneficiary.

Any IRA or Keogh plans that have a listed beneficiary other than the estate can avoid probate and any property that is held in a trust for a specific beneficiary will not need to be subject to probate. This includes all Decedent’s Revocable Living Trusts, POD and TOD accounts, living trusts, community property agreements, and other will substitutes. If you are currently planning for the future of your estate and don’t want your children to have to deal with probate in the future, then you may want to be specific when drafting your will or utilize trusts to help your beneficiaries avoid the probate process. If you are currently undertaking a probate venture, make sure that you have a knowledgeable legal aid on your side.