January 10, 2014   Asset Protection Planning

Do All Assets Go Through Probate?

Not everything you own will automatically go through probate. The obvious assets that will need to be probated are those with a title that is in your name only. These might include bank accounts, investments, home, other real estate, vehicles, etc. If yours is the only name on the title and you are deceased, only the probate court can take your name off the title and put someone else’s name on.
Assets that generally do not go through probate are 1) jointly owned assets that transfer to the surviving owner; 2) assets that have a valid beneficiary designation; and 3) assets that are in a trust. However, these assets do not always avoid probate.
1. Jointly Owned Assets. Jointly owned assets that transfer to the surviving owner do not go through probate. (This kind of joint ownership is “joint ownership (or joint tenants) with right of survivorship.”) But if the surviving owner dies without adding another owner, or if both owners die at the same time, the asset must be probated before it can go to the heirs.
You should be aware that transfer of this ownership happens immediately upon the first owner’s death. So, even if your will says you want someone else to receive your share (like your children from a previous marriage) and you die first, the asset will still go to the surviving owner who can then do whatever he/she wants with it—and your children would likely be disinherited.
Another kind of joint ownership is tenants-in-common. With this kind of joint ownership, if you die first, your share will be distributed as directed in your will (or to your heirs if there is no will); it will not go to the other owner unless your will says so. This lets you control who receives your share, but the asset will have to go through probate.
2. Beneficiary Designations. Some assets—including insurance policies, IRAs, retirement plans and some bank accounts—let you name a beneficiary. When you die, these assets will be paid directly to the person(s) you have named as beneficiary without probate. Well, that is the way it is supposed to work, but it doesn’t always happen that way.
  • If your beneficiary dies before you or at the same time as you, the proceeds will have to go through probate so they can be distributed with your other assets.
  • If your beneficiary is incapacitated, the probate court will probably take control of the funds through a guardianship/conservatorship. This is because the institution will not knowingly pay to an incompetent person and will usually insist on court supervision.
  • If you list “my estate” as beneficiary, the court will have to determine who “my estate” is. The funds will go through probate and be distributed with your other assets.
  • If you name a minor as beneficiary, a probate court will probably have to establish a guardianship for the child. Most institutions will not pay directly to a minor or to another person for the child’s benefit; they do not want the potential legal liabilities and will usually require proof of a court-supervised guardianship.
3. Trust Assets
Assets in a trust, like a revocable living trust, avoid probate. However, if you have a trust in your will (called a testamentary trust), your assets will not avoid probate. The will and your assets will have to go through probate before the trust can go into effect. Any assets you leave out of your living trust will probably also have to go through probate.
Vickie Schumacher is the author of the best-selling book, “Understanding Living Trusts.®” The sixth edition is currently in production.
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