What is Considered Probate Property?

When an individual dies and leaves property behind, often times it will need to go through probate.  This is a process in which the value of the property is determined and debts are paid.  Then the will is addressed, and assets and property are distributed according to the deceased individual’s last requests.  There are some types of properties that do not have to go through probate, though.  It’s important that executioners and others understand the difference between these types of property.

Probate Property

There are only certain types of property that legally must go through probate court, and this is called ‘probate property.’  Probate property may include:

• Property that is solely in the deceased individual’s name.
• Certain property that was held jointly by the deceased and another individual as ‘tenants in common.’
• The deceased individual’s spouse’s property, if the spouse is deceased as well.  This may only be required in certain states that are considered ‘community property states.’

Many individuals appoint an estate executioner so that this individual can handle the probate process after the estate owner has passed away.  The executioner starts the probate proceedings, distributes the assets and properties, pays taxes and debts, and ensures that all other loose ends are tied.

Non-Probate Property

Non-probate property does not have to be ‘proven’ through the probate process and can be distributed automatically to the deceased individual’s beneficiaries.  This kind of property may include:

• Property that has been co-owned or held jointly, which falls under a ‘right of survivorship’ clause.  For instance, if two individuals co-own a company and the contract states that surviving member obtains all parts of the company, this does not need to be submitted to probate court.
• Any property in trust.
• Property, money or assets that have been assigned a beneficiary already.
• Life insurance.
• 401(k) plans, pensions or annuities.

The reason this type of property does not have to go through probate court is because it’s already been determined legally who the property or assets will go to when the owner is deceased.

Hiring a Probate Attorney

While probate may sound cut and dry, sometimes it can be very complicated.  In times like this, a qualified probate attorney can really help sort out the mess.  Attorneys that work with estate, will and trust laws every day know the statutes and laws well.  They can advise individuals on how to proceed and what should be done in certain situations.