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Estate Planning Probate and Non-Probate Assets

Estate Planning Probate and Non-Probate Assets

Estate planning can be a complicated process for some people. This is one of the reasons it is so important to work with an attorney who is experienced with the estate planning process in your state.

One of the questions estate planning attorneys get the most has to deal with probate and non-probate assets. People have a basic understanding of probate and know that it can be a frustrating process, but they are not sure how exactly their assets are affected.

What Exactly is Probate?

Probate is more of a process than it is a thing. The probate process occurs within the probate courts – courts designed specifically to deal with settling estates of deceased individuals for their families.

During the probate process, a determination is made by the court about how to distribute someone’s property after they die. In some cases, assets included in the estate are distributed to beneficiaries via the court. In other cases, assets are not subject to scrutiny by the probate court and can be distributed directly to beneficiaries.

The entire probate process can be lengthy, and sadly for some, frustrating. In addition to filing with the court and choosing an executor, it also includes:

  • Asset collection
  • Bill pay
  • Tax filing
  • Distribution of property
  • Final account filing

Even under the best of circumstances when everything goes smoothly, it is not something anyone wants to deal with when they are grieving the loss of a loved one. It is an expensive and the process takes a lot of time. One of the kindest things you can do for your family is take action while you are alive and well to make sure probate is not an issue for them once you are going. The best way to do this is to set up your estate with as many non-probate assets as possible.

What is the Difference between Assets that are Probate and Non-probate?

Probate assets include those owned only by you when you die. They might include the following:

  • Property titled only in your name or listed as a “tenant-in-common,” such as houses or other real property
  • Personal property – things like jewelry, furniture, or vehicles
  • Bank accounts that only have your name on them
  • Interest in a corporation, partnership, or LLC
  • Life insurance policies listing as the beneficiary either you alone or your estate

Non-probate assets, on the other hand, can include:

  • Property included in a trust
  • Accounts held in joint tenancy, or set up to be payable or transferable upon death
  • Joint tenancy or tenants by the entirety property
  • 401Ks, IRAs, and other retirement savings
  • Life insurance policies listing anyone other than you as the beneficiary

The former is subject to probate, while the latter has additional protections applied to it while you were living that make the process of settling your estate much easier once you were gone. There are fewer questions for the court and as such, probate is not necessary. The more assets you can create that are non-probate assets, the better a situation you are leaving for your family.

The more work you do now planning your estate, the less you will be forcing your family to do once you are no longer here. If you would like to know more about planning your estate in the best manner possible using both probate and non-probate assets, contact Bonnie Winders at 301-665-9145.

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