Probate vs. Non-Probate Assets: What You Need To Know

Sep 20, 2023 | Probate

Understanding if your assets are probate or non-probate is crucial when drafting an inheritance or estate plan. Misunderstanding the difference between these groups can generate costly delays, disagreements, and unexpected consequences when creating an estate plan. After death, probate assets must be disbursed via the court, but non-probate assets can be given directly to recipients. Having a grasp on how they affect your estate plan is essential to creating effective estate planning strategies. For peace of mind and wealth distribution, see an estate planning attorney.

Understanding the Difference Between Probate and Non-Probate Assets

The difference between probate and non-probate assets lies in how they are transferred after your death. Probate assets go through a court-supervised procedure for distributing your estate, while non-probate assets typically transfer directly to designated beneficiaries without involving the court.

Non-probate assets offer a more straightforward and efficient distribution of your possessions, whereas probate assets can be time-consuming, expensive, and may lead to conflict among beneficiaries.

When creating an estate plan, it is vital to identify which assets fall into each category and consider the potential advantages and disadvantages associated with them. By doing so, you can ensure your belongings are distributed according to your wishes with the least amount of hassle.

Identifying Probate Assets

Assets that are subject to the probate process, or probate assets, will be distributed as part of your inheritance under a court’s supervision after your death. Probate assets include: 

  • Solely owned real estate, 
  • Individual bank accounts 
  • Personal items 
  • Investment accounts

Generally speaking, assets that lack a named beneficiary or joint owner with survivorship rights are considered probate assets.

The probate process can be expensive and time-consuming because there may be court and legal fees involved. It’s crucial to have a thorough estate plan that covers both probate and non-probate assets as a result.

What are Non-Probate Assets?

In the world of estate planning, assets that do not require probate are incredibly important. These particular assets, as discussed, sidestep the court system entirely and instead go directly to designated beneficiaries upon your passing. They exist outside of your probate estate, meaning they avoid undergoing the lengthy probate process.

Common non-probate assets include:

  1. Trusts – By transferring these assets during your lifetime, you can specify how you wish to distribute them after your death. Consequently, when distribution occurs, the trust handles the transfer without involvement from the courts.
  2. Life insurance policies with named beneficiaries also fall under the category of non-probate assets. When an individual is listed as a beneficiary on such policies, they receive the death benefit directly without having to navigate through probate.
  3. Jointly owned property with survivorship rights is another type of non-probate asset. If one joint owner dies, their share automatically transfers to the surviving owner(s).

Knowing which specific non-probate assets you possess and how they fit into your overall estate plan cannot be overstated. In order to ensure these assets are correctly identified and transferred in accordance with your wishes, it is important to seek guidance from an experienced estate planning attorney

The Benefits of Non-Probate Assets

Non-probate assets have several advantages. Among the benefits are efficient asset transfers. Non-probate asset transfers save time and money by skipping legal steps. These assets are excluded from probate, so beneficiaries can receive their share without going through a lengthy, drawn out process. They are also beneficial if you favor private asset transfers over public ones.

Another benefit of non-probate assets is no estate tax. Estate taxes reduce the value of deceased people’s estates, leaving less for their heirs. Non-probate assets, because they are not taxed as part of the estate, allow heirs to receive their full worth without deductions.

When it comes to individuals with disabilities requiring support in managing their affairs and making decisions, non-probate assets play a vital role. It becomes crucial to assign a reliable adult child or spouse who can take charge of these assets. By placing your trust in someone you rely on to handle your financial matters, you can reduce the burden that may arise during periods of illness. It is important to seek advice from an experienced estate planning lawyer who can assist you in navigating the complexities associated with this procedure. Their wealth of knowledge in this area will aid you in selecting suitable non-probate assets for your plan and identifying a dependable individual capable of efficiently overseeing them.

Common Estate Planning Strategies

There are various estate planning techniques available to protect your wealth and ensure that your wishes are fulfilled after you pass away. The most appropriate approach for you will depend on your specific circumstances and goals.

Regardless of your situation, the first step is, predictably, evaluating your probate assets and non-probate assets. This distinction is important in deciding what actions should be taken next.

Next, you must identify the beneficiaries of your belongings upon your death. These beneficiaries may include your spouse, children, other relatives, or close friends. You must also determine how these assets are to be divided among them. Depending on your preferences, you might prefer an equal distribution among all children or specific instructions regarding the allocation of certain assets.

Once you have considered these factors, you can start to develop your estate plan. Some common strategies that can be used to protect your assets and ensure that your wishes are carried out include:

1. Creating a will

A will is a legal document that outlines how you want your assets to be distributed after your death. You can name specific beneficiaries and specify how you want your property to be divided. A will can also be used to appoint a guardian for minor children.

2. Setting up trusts

Trusts can be used to transfer property to beneficiaries without going through probate. There are many different types of trusts, and the best one for you will depend on your goals. For example, you may set up a revocable living trust that can be changed at any time or an irrevocable trust that cannot be changed once it is created.

3. Buying life insurance

Life insurance can be used to provide financial security for your loved ones after your death. The death benefit can be used to pay off debts, cover funeral costs, or provide income for your family.

4. Creating a power of attorney

A power of attorney allows you to appoint someone to manage your affairs if you become incapacitated. This can be used to handle financial matters, make medical decisions, or carry out other tasks on your behalf.

5. Planning for incapacity If you become incapacitated, it is important to have a plan in place for how your affairs will be managed. This can include appointing a power of attorney, creating a living will, or establishing a trust.

Estate planning is a complex process, but there are many resources available to help you. You may want to consult with an estate planning attorney  to create the best plan for your particular situation..

The Role of an Attorney in Estate Planning

Attorneys are necessary for estate planning. Their invaluable experience can help you comprehend complicated legal concepts and accomplish your goals by recommending estate planning options and creating a plan that suits your needs. Your attorney can help you prepare a legal will, form trusts, select a power of attorney, preserve your assets, and protect your family, among other estate planning essentials. They can also assist you in locating probate and non-probate assets and avoiding probate, saving you time and money.

Contact ProvenLaw today for estate planning assistance. We can help you draft a will, form trusts, select a power of attorney, preserve your assets, and protect your family. They call it an estate “plan” for a reason. Don’t leave your family’s future to chance. Contact ProvenLaw today for a free, no obligation consultation and discover how we can help you plan for a future that you can be proud of.

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