Prioritizing your Estate Planning early on is doing your part to mitigate the stress your family and loved ones will face when dealing with your affairs after you’ve passed. When you fail to get organized in advance, your estate may become subject to an extensive probate process that could have otherwise been avoided.
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One way to ensure that your assets are distributed how you wish is to create a Will or Living Trust, where you name beneficiaries for specific assets. Another way to prepare is by educating yourself on the differences between probate assets and non-probate assets.
What Types of Assets are Subject To Probate?
Any assets that are titled in the decedent's sole name, not jointly owned, not payable-on-death, don’t have any beneficiary designations, or are left out of a Living Trust are subject to probate. Such assets can include:
Bank or investment accounts
Stocks and bonds
Vehicles (including cars, boats, or airplanes)
Business interests
Real estate
Other personal property or household items
Assets that fall under the tenants-in-common category are also subject to probate. This is when two or more individuals own a designated portion of a single asset. Any of the assets listed above can be considered tenants-in-common property if they are created that way. For example, if you own 50 percent of a tenants-in-common asset, you can name a beneficiary for your portion of that asset in your Will. Don’t worry — we’ll dive deeper into the differences between tenants-in-common and joint tenancy with rights of survivorship below.
Do Household Items Go Through Probate?
In short, yes. Household items do have to go through the probate process as they are considered probate assets with no explicit or individual title. These assets (items like furniture, clothing, collections, artwork, jewelry, etc.) typically have little monetary value but can have serious sentimental value. In most cases, the executor of the estate will distribute such assets accordingly. However, if there’s a specific household item a person deems extremely important, it can be enumerated in his or her Living Trust, thus avoiding probate.
How Much does an Estate have to be Worth to Go Through Probate?
Bigger isn’t always better when it comes to Estate Planning as more modest estates can avoid probate court entirely. For example, In California, your estate will not be subject to probate if the total of your remaining assets is less than $150,000. Remaining assets are only those that are considered probate assets. This means that even if you have a larger estate as a whole, you may be able to take advantage of a simpler (or non-existent) probate process.
Let’s say Frank has a $500,000 jointly owned property, a $300,000 bank account for which a payable-on-death beneficiary has been named, a $100,000 life insurance policy, $50,000 of assets under a Living Trust, and a solely-owned car worth $20,000. On first glance, one might assume that Frank’s estate is valued at $970,000 and therefore subject to probate. But because the car is his only probate asset, his estate would likely be able to avoid probate in most states.
Keep in mind that what qualifies as “small” varies from state to state; so be sure to check your municipality’s specific probate laws.
Which Assets are Not Considered Probate Assets?
While many assets are required to go through probate, namely those mentioned above, there are certain assets that can avoid the process. Here are several specific examples:
Life insurance or 401(k) accounts where a beneficiary was named
Assets under a Living Trust
Funds, securities, or US savings bonds that are registered on transfer on death (TOD) or payable on death (POD) forms.
Funds held in a pension plan
Wages, salary, or commissions due the deceased person (only up to a certain amount depending on the state)
Cars or boats registered in TOD form
Vehicles or other household goods that are distributed to immediate family members (laws vary by state)
To clarify even further, there are three types of assets that in most cases can avoid the probate process: jointly owned assets, beneficiary designations, and trust assets. Keep reading for a breakdown of each.
Jointly Owned Assets
Jointly owned assets, also known as joint tenancy with rights of survivorship, can be anything you own with another person. For example, if you own a property with your spouse and both of your names are listed on the title, it would be considered a jointly owned asset. The same goes for bank accounts. When you die and have jointly owned assets, the ownership of those assets will be transferred to the surviving person.
It’s important to note that the transfer of ownership happens immediately upon death. So even if your Will states that you want your share of the jointly owned asset to be distributed to your surviving children or siblings, the asset will still go to the remaining owner. To avoid this, you must name a new owner before you die.
Tenancy in common is another type of joint ownership that we mentioned above. This type of ownership allows you to designate in your Will how you want your share of the joint asset to be distributed (meaning you can name a child or sibling co-owner of the asset instead of it going entirely to the surviving owner). Keep in mind, though: tenancy in common assets do have to go through probate.
Beneficiary Designations
Assets like health or medical savings accounts, life estates, life insurance policies, retirement accounts — including IRAs and 401(k)s — and annuities allow you to name a beneficiary. This means that when you die, those assets will be given directly to the person you appointed without having to go through probate. However, there are a few important exceptions to point out: If the beneficiary you name passes away before you, becomes incapacitated, is a minor, or is your estate (while rare, some do name their estate a beneficiary), the asset(s) will still have to go through probate.
Trust Assets
Any asset you name in your Living Trust can avoid probate unless you have a Trust in your Will (called a Testamentary Trust). If this is the case, your Will must go through probate before the Trust goes into effect. To avoid this, be sure to update your Living Trust regularly as you acquire new property or other important assets.
No one likes to think about their own death, but doing so in advance is the best way to ensure your heirs receive what is rightfully theirs. Understanding the differences between probate and non-probate assets will allow you to create a Will or Living Trust you can be confident in. Here at Trust & Will, we’re determined to simplify your Estate Planning process so that your legacy is left intact. If you need help with Probate we can help!
