Which Assets May Have to Go Through Probate?

Which Assets May Have to Go Through Probate 

Since your estate is essentially the culmination of everything you’ve spent your life working for, you want to be sure that all your hard work does not fall to the wayside at the end of your life – you want to be calling the shots and making things as easy as possible for your surviving loved ones. To do this, you’ll need a secure and well-drawn estate plan. Thorough estate plans are not always easy to draw up, and few people look forward to creating them, but it’s always worth it to put in the effort during the early stages of the process in order to minimize uncertainty (and potential difficulties and delays) later on.

When you’re planning your estate, one of the first steps is to understand what your assets are. Your “assets” are essentially any properties that you own that have any value and can be put towards debts, legacies, or other commitments. Assets can include material possessions, real estate, business interests, investments, retirement savings, insurance policies, and other various forms of property.

One of the most frustrating things that can happen for surviving loved ones is to have your assets go through probate. There are ways to avoid this, but first you have to know which assets are supposed to go through probate and which ones can skip past it altogether.

What’s the Difference Between Probate and Non-Probate Assets?

Florida Probate Lawyer

When it comes time to distribute your assets as you have stipulated in your will, your probate assets will have to go through the court. This means that the beneficiary will receive the assets only after the court has distributed them, which can take time and no small difficulty. Non-probate assets, on the other hand, are those that do not go through the court and will simply go directly to the intended beneficiaries.

To avoid the hassle of going through the court, some people will choose to leave only non-probate assets. In an ideal world, a non-probate asset would be any asset that the decedent deemed as such, but unfortunately it’s not so simple. In the eyes of the law, certain assets are inherently “probate” while others are inherently “non-probate.”

For the most part, non-probate assets are those that have always had someone else’s name attached to them. (That is, they were held only partly by the decedent.) As Elder Law Answers explains, some non-probate assets include:

  • Retirement accounts
  • Property that is currently held in a trust
  • Property that is held in joint tenancy (i.e., property that is owned jointly by two or more parties)
  • Bank or brokerage accounts that are either held in joint tenancy or are held with specific “payable on death” (POD) or “transfer on death” (TOD) beneficiaries
  • Life insurance or brokerage accounts that list a beneficiary (as someone other than the decedent)

Probate assets, on the other hand, are those that are owned solely by the decedent. Some probate assets include:

  • Fixed property (such as land or buildings) that is titled solely in the decedent’s name
  • Personal property (excluding large-scale things like land and buildings), such as jewelry, vehicles, or furniture
  • Bank accounts that were held only in the decedent’s name
  • Interests in partnerships or corporations
  • Life insurance policies or brokerage accounts that name either the decedent or the estate as beneficiary

Should You Consult With a Legal Expert While Planning Your Estate?

 Florida Estate Planning Attorney

By their very nature, assets that go through probate require the involvement of a court. But even aside from this, it is often in the best interest not only of the beneficiaries but also for the creator of the will to consult with a knowledgeable lawyer all throughout the estate planning process, from creation to execution. Speaking to a lawyer during the estate planning process will make everyone’s lives less stressful down the road, because you will be able to anticipate problems and solve conflicts even before they arise.

Proper estate planning can help you protect all of your assets to ensure that they are not ravaged by taxes and fees that may arise during the administration process. Estate planning is nuanced and complicated, but an experienced Florida lawyer can help walk you through the process. Bear in mind that although estate planning may seem daunting, it’s an important process to go through in order to ensure that your loved ones receive the care that you intend for them to have, and to make sure that your years of hard work pay off.

To ensure that your assets are divided fairly, your requests are honored, and your family is cared for later in their lives, it’s important to have a thorough and carefully drawn up estate plan. If you’re ready to protect your family and your property, contact Wintter & Associates today to discuss the process in greater detail and begin the planning process

About the Author:

Christopher Q. Wintter is the founder of Wintter & Associates, P.A. and a board-certified expert in Trust and Estate matters by the Florida Bar. With more than 24 years’ experience as a practicing attorney, he also serves as an instructor and faculty member for the National Institute of Trial Advocacy (NITA)—the nation’s leading provider of legal advocacy skills training to practicing attorneys—and has earned the AV® Preeminent™ rating with LexisNexis Martindale Hubbell. He was also selected for inclusion in Florida Super Lawyers for 2011 and 2012 in Estate and Trust Litigation.