What Is The Difference Between Probate And Non-Probate Assets?

March 17th, 2014

Many individuals incorrectly assume that their last wishes regarding inheritance will be carried-out if their last will and testament expressly state how they want their assets distributed upon death. That may be true for probate assets; however, the bulk of assets are likely non-probate assets, and not subject to the terms of the will. Although the topic sounds confusing, it is quite simple.

Probate assets are assets titled in a decedent’s name at death, that must be probated through probate court. The Will CONTROLS how property is distributed.

  • Personal property
  • Real estate titled in one person’s name;
  • Life insurance payable to the decedent’s estate.

Non-probate assets are assets that have a survivorship designation that upon death, assets pass directly to a survivor(s), while avoiding probate court. Will does NOT CONTROL how property is distributed.

  • Joint tenants with rights of survivorship;
  • Life insurance designating a beneficiary;
  • Bank or Brokerage accounts with transfer-on-death (TOD) or payment-on-death (POD) designations.

The key is to inventory every asset, and determine how that asset will be distributed at death. Most estates that I evaluate have some assets designated TOD or POD, but fail to designate some assets (e.g., personal property, motor vehicles, or simple bank accounts). Just because you designate an individual to receive your assets in your last will and testament, that gift is meaningless if you have a TOD or POD designation to someone else. Our attorneys review your assets to determine how title is held, and ensure that upon your passing, your assets are distributed per your wishes rather than relying on your last will or other beneficiary-designation form.