Probate assets are the assets of an estate that will pass via the probate process to beneficiaries under a will or to heirs according to the laws of descent and distribution in intestacy. In contrast, nonprobate assets pass according to a written instrument or arrangement other than a will.
The following assets are probate assets:
- stocks, bonds, bank, and brokerage accounts (except those with transfer/payable on death beneficiary designations and those which are held jointly with right of survivorship);
- interests in real property held in fee simple or as a tenant in common (excluding real property held in joint tenancy with right of survivorship, under a transfer on death deed, or as a life estate);
- interests in vehicles, a boats, and airplanes except those that are held jointly with right of survivorship;
- life insurance policies (but only if the beneficiary thereof is the decedent or the decedent’s estate);
- Individual Retirement Accounts and Keogh Plans (but only if the named beneficiary on death is the decedent or the decedent’s estate); and
- all of the tangible personal property of the decedent’s estate.
A person drafting a will must be able to determine whether or not each item of his or her property is a probate asset. If a testator mistakenly includes a nonprobate asset in his or her will, the result could be the unintentional disinheritance of a beneficiary or a will contest among the testator’s surviving family members. (Read about super wills for more information).
If you are writing a will and are unsure of whether a right, interest, or other asset you have is a probate asset, we strongly recommend that you seek the advice of an estate planning attorney.