What is a probate asset?
Probate is a legal process where a court validates a decedent’s Last Will & Testament and subsequently appoints a Personal Representative to carry out the affairs of the decedent’s estate. A decedent’s Last Will & Testament, in part, dictates the distribution pattern for all probate assets. However, a common question for both potential Personal Representatives and estate beneficiaries becomes “what is a probate asset?”
The probate process only governs probate assets. Therefore, it is imperative to determine what constitutes a “probate asset.”
Probate assets include the following:
- Assets or accounts held or titled solely in the name of the decedent;
- Assets (including real property) held by the decedent and other persons as “tenants-in-common”;
- Assets that do not have a payable on death (POD) or transfer on death beneficiary (TOD); and/or
- Assets that list the “estate” as a POD or TOD.
These assets all pass pursuant to the decedent’s Last Will & Testament.
In the inverse, the following assets would not be included in a decedent’s probate estate:
- Assets or accounts jointly owned by the decedent and other persons;
- Real property held by the decedent and other persons as “tenants by right of survivorship,” “tenants by the entirety,” or “as husband and wife”;
- Assets held in a trust; and/or
- Assets with a POD or TOD beneficiary (excluding the “estate” as set forth above).
These assets pass automatically to the co-owner or designated beneficiary without going through the probate process, regardless of what is set forth in the Last Will & Testament.
An Example Of Probate Asset Law In Practice
John is a widow with two (2) children, Jim and Jane. John has a valid Last Will & Testament that leaves his entire estate, including real property, in equal shares to his children. At the time of John’s death, he owns the following assets:
- A home titled in his sole name.
- A checking account in his sole name made payable on death in equal shares to Jim and Jane.
- A savings account in his sole name maybe payable on death to his sister, Janice.
- An IRA with no designated beneficiary.
- A vehicle titled solely in his name.
In this example, only the home, the IRA, and the vehicle would be considered “probate assets.” Therefore, the Personal Representative would be charged with distributing those assets to Jim and Jane in accordance with John’s Last Will & Testament.
The checking account is not a probate asset because it lists Jim and Jane as payable on death beneficiaries. The account would still go to Jim and Jane equally, but the transfer takes place outside of the probate process. They will likely just have to provide a death certificate and fill out paperwork to facilitate the transfer.
Similarly, the savings account is not a probate asset because it lists Janice as the payable on death beneficiary. Because this is not a probate asset, it would still pass automatically to Janice, regardless of John’s Last Will & Testament stating that he wants his entire estate going to his children. Designated beneficiaries supersede the provisions of a Last Will & Testament.
The above example is why it is imperative for individuals, while they are alive, to ensure that all assets are titled and/or made payable on death in the manner that meets their estate goals. It is also important for Personal Representatives and estate beneficiaries to understand the implications of how a decedent’s assets are titled and/or designated.