What Are the Differences Between Probate Assets and Non-Probate Assets and Why Does It Matter?

October 1, 2015

Authored by: Matthew F. Penater, Partner – Elville and Associates
443-393-7696
matt@elvilleassociates.com

In the world of estate planning, the words “probate assets” and “non-probate assets” are used often, though in most cases in my experience, the client does not understand the difference. Simply put, probate assets are assets that pass to a beneficiary through a Last Will and Testament, while non-probate assets are assets that pass to a beneficiary through any means other than a Last Will and Testament. That is a practical definition of the two assets, but not very helpful in assisting you to determine what a probate asset is and what is non-probate. Probate assets are assets owned by an individual, without any co-owners or beneficiary designations in place for that asset. Examples of probate assets are solely-owned vehicles, individually-owned bank accounts, etc. Non-probate assets are assets owned jointly with others or have some type of post-death designation in place. Examples of non-probate assets are: jointly-owned property (car, home, bank accounts, etc.), 401(k)s, life insurance, Transfer on Death accounts, and life estate properties.

Understanding what assets of yours constitute probate and non-probate assets is critical when structuring your estate plan. For example, let’s say you want your children to receive equal shares of your estate. In order to carry out this wish, you prepared a simple Will leaving your estate to your children in equal shares. One of your primary assets is a savings account with $20,000. If you own that account individually, that $20,000 would pass to your children equally, under your Last Will and Testament as you wanted. However, let’s say you added one of your children as a joint owner on that savings account so the child could help pay your bills, etc. (as is very common). Adding your child as a joint owner has now converted that bank account from a probate asset to a non-probate asset, which means the $20,000 will NOT pass under your Will. Instead, upon your death, under the laws of Maryland, the entire balance of that account will become the property of the child who is listed as the joint owner. Perhaps that child will then divide the account among his or her siblings, but then again, maybe not.

The importance of identifying your probate assets v. non-probate assets is central to building your estate plan. Take some time to review your assets and make sure your non-probate arrangements are in concert with your estate plan.

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