Probate
Probate is a legal process which is carried out by the surrogate court. It is done to determine the validity of the last will and testament of a testator. The testator is the deceased person. In a case whereby the testator does not have a will, the court decides what happens to his estate, how the estate will be distributed among his heirs, the court will also appoint an administrator, etc. these the court will do based on the state’s law.
The executor or administrator is the person that is burdened with the responsibility of distributing the testator’s assets to his heirs after the court has validated the will. The executor or administrator is also responsible for the payment of creditors, settling of taxes, enlisting probate assets, taking into account all assets owned by the testator, determining false creditors from real creditors, ensuring that all the heirs and beneficiaries of the testator gets what is duly theirs and also ensuring that the last will and testament of the testator is followed to the letter.
Because of this great responsibility of the executor or administrator, it is advisable you name a person who has idea on how to go about these things. You can decide to name your attorney as your executor. This will even make things easier as they are legally oriented and inclined.
If you happen to be the named executor or administrator to the estate of a loved one then it is your responsibility to enlist the Probate assets.
Probate and non-probate assets
Non Probate assets
Nonprobate assets are those assets or properties which are not subject to the probate process. They bypass the probate process regardless of what the will says about them. They are not enlisted among the assets that will go through the process of probate. Some of these nonprobate properties include
Assets which are in a trust: Setting up a living trust is a way to avoid the process of Probate. When you set up a trust, you give right of ownership to the trustee for the benefit of the beneficiary. The trustee has the authorization to carry out the instructions of the trust regarding the way the trust should be used. This kind of asset is nonprobate assets as they go straight to the beneficiary.
Properties with a named beneficiary: There are properties which the beneficiaries were named so they do not pass through the probate process. Some examples include life insurance policies, IRAs, 401(k)s, and pensions, etc.
Assets which have a payable on death (POD) or transfer on death (TOD) designation: Some assets already have their designated beneficiaries at the event of death. These assets do not go through the probate process. Example of asset which have a payable on death (POD) designation include bank accounts with beneficiaries while real estate, vehicles, etc. are examples of assets which have the transfer on death (TOD) designation.
Jointly owned assets: This is common among married couples. These kinds of assets do not go through the probate process. When one of the owners die, his or her part of the assets goes to living partner
Probate assets
After identifying and sorting of the nonprobate assets the rest assets will of course go through the process of probate. Depending on the state’s law, at times the executor will have to enlist all probate assets alongside their value. This they will file with the probate court. There are assets which can be hard to value and may require an appraisal for instance antiques. Some other assets such as bank accounts are much easier to value.
Probate assets include:
Assets owned solely by the deceased or assets where the person is a tenant in common: Assets which the deceased person own personally are eligible for probate. Also, there are no survivorship rights for tenants in common so; the owners can bequeath their share of the asset to any beneficiary or their choice.
Personal belongings: These set of properties goes through the Probate process. For instance houses hold items like clothing, jewelries, etc.
Seeking assistance
Distinguishing between probate assets from nonprobate assets could really be challenging. But with the help of a professional, this process can be pretty easy. Reach out to our Probate attorneys for assistance today.
FAQ
Question: What makes assets eligible for enlisting?
Answer: If the asset is a probate asset
Question: Can assets in a trust be listed for probate?
Answer: No! Assets in an irrevocable trust cannot be listed for probate
Question: Whole makes the list?
Answer: The executor is responsible for listing the probate assets
