What Items Are Probated in a Will?

By Marcy Brinkley

When a person dies, his last will and testament gives instructions about distributing his property. This legal document must be prepared and signed according to the laws of your state. If you wish, your assets can be listed in your will and handled through the probate court system. However, many people make arrangements during their lifetimes for some or all of their assets to pass without the need for probate.

Probate

"Probate" is the term for handling a deceased person's estate through the courts. Each state has its own laws about probate, but generally the process starts with filing the deceased person's will with the court and determining whether it is valid. The judge appoints an executor who gathers the person's assets, including money, real estate, vehicles and personal items. The executor pays valid debts and eventually distributes remaining assets according to the terms of the will. After paying taxes and submitting an accounting to the court, the executor closes the estate. The executor does not handle non-probate assets, such as life insurance proceeds.

Non-Probate Assets

Certain types of assets do not go through probate. These non-probate assets pass to another person by contract, trust or rights of survivorship set up by the deceased person during his lifetime. Retirement accounts and life insurance benefits, for example, pass to the beneficiary named on the contract. Property owned by the deceased and another person as joint tenants with right of survivorship passes automatically to the survivor. A "payable on death" clause allows such assets as stocks, bonds, CDs, bank accounts, and savings bonds to transfer to the survivor without going through probate. Property held by the deceased in trust for another person also passes to the beneficiary as a non-probate asset.

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Probate Assets

Unless an asset was set up by contract, trust or survivorship arrangement to pass automatically to another person, it is probably subject to probate. Examples of probate assets include bank accounts or real estate held in the deceased person's name alone or with another person as tenants in common without right of survivorship. If you own valuable personal property, including jewelry, collections, fine art or furniture, those items will also go through probate. Many people leave specific bequests in their wills if they want particular items to go to specific people.

Small Estates

Many states have a simplified procedure for small estates that allows assets to pass to beneficiaries without the need for probate. In California, for example, an estate worth no more than $100,000 does not need to go through probate. The small estate limit is $50,000 in Texas, but this figure does not include the value of the homestead, non-probate assets or personal property.

Considerations

It is important to make sure your beneficiary information and your will are up-to-date. If you have non-probate assets, such as life insurance or bank accounts payable on death to someone else, the assets will pass to those beneficiaries regardless of what your will says unless the named beneficiary is an ex-spouse or a person who has already died. If you create a trust, marry, divorce, have a child or change the way property is titled, consider revising your will to make sure your wishes are carried out after your death.

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Items That Are Not Part of a Probate Estate in Pennsylvania

References

Related articles

Inheriting Property in a Will in Missouri

A Missouri resident can write a will leaving his property -- real estate or personal property -- to named beneficiaries or he can transfer property in other ways, such as a transfer-on-death deed. However, he cannot completely disinherit his spouse. After the probate process is completed and the decedent’s debts are paid, each beneficiary will receive his inheritance as long as it was not sold to pay debts. If there was a mortgage on a piece of property, it will transfer with the property.

Ownership of an Heirloom Without a Will

A will allows the maker, known as the testator, to decide who will inherit his property after his death. Wills can include a detailed list of heirloom property for distribution to particular loved ones, but such lists are not effective unless they are part of a will. When someone dies without a will, heirloom property is generally distributed like other personal items -- by the state's intestacy laws.

What If an Heir Dies?

The impact of an heir’s death on the probate process depends a great deal on whether he is also a beneficiary. An heir is a relative entitled to inherit from the decedent by law -- heirs inherit when the decedent dies without a will. Beneficiaries are those individuals named in a decedent’s will to receive his property. They may or may not be related to him. An individual can be both an heir and a beneficiary when he's bequeathed property in a will and is also related to the decedent, so he would have stood to inherit even if the decedent had not left a will.

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