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The Heritage Law Center, LLC Blog

What Are Probate vs. Non-Probate Assets?

POSTED ON: October 3, 2018

Many people try to avoid probate because it can be time consuming, costly, and a general pain in the neck. However, in order to do so it’s important to understand what probate assets are.

Massachusetts probate is a court-managed proceeding where a will is verified, a representative is appointed, and assets still titled in the name of a decedent are distributed according to the will or the law of intestacy if there was no will. The assets involved in this process are referred to as probate assets because they require a probate court order to pass title from the decedent to the beneficiaries.

Probate Assets
Probate assets are owned only by the decedent (person who passed away), and include the following:

  • Any real property that is solely held in the deceased person’s name or held as tenant in common (in this case, the decedent’s share passes to their heirs or as outlined by their will)
  • Personal property like furniture, family heirlooms, and cars (as long as only the deceased person’s name is on the car’s title)
  • Bank accounts that are held only in the decedent’s name
  • Life insurance policies and brokerage accounts that list the deceased person only or the estate as the beneficiary

Non-Probate Assets
Assets that don’t have to go through the probate court process are called non-probate assets. These are assets for which the title has already been transferred within the decedent’s lifetime, or assets in which the transfer of title is controlled by some sort of survivorship mechanism. Non-probate assets can include:

  • Property held in joint tenancy with rights of survivorship. Upon the death of one owner, their interest in the property automatically transfers to the other owner(s).
  • Bank and brokerage accounts held in joint name or with transfer on death or payable on death beneficiaries. When the account owner / joint owner passes away, the accounts automatically transfer to the other joint owner or the designated beneficiaries.
  • Property held in the name of a trust. These assets will be distributed according to the terms of the trust.
  • Life insurance, brokerage accounts, and retirement accounts that list a beneficiary other than the deceased’s estate

We can help you create an estate plan that reduces the time, expense, and frustration associated with probate as much as possible. Contact us today for a no-cost, confidential consultation by calling (617) 299-6976 or sending an email to mkarr@maheritagelawcenter.com.