What doesn’t go through probate? As estate planning and probate attorney Sarah Siedentopf explains in our latest video, the two main categories are 1) property or assets that have multiple owners and 2) items with beneficiary designations.
If you’re looking into your own will or estate planning, or if someone has passed away and you may be in charge of their estate and dealing with probate, you might have questions about what doesn’t go through probate. There are several things that don’t go through probate and the big sort of overarching categories are things owned by multiple owners and things with beneficiary designations.
So, for example, if we’ve got a bank account with joint owners and the second owner is still alive, that bank account belongs completely to that second owner and is not going through probate. Likewise, with real property (houses, land). If the property is owned jointly with right of survivorship, it is not going through probate. The second owner owns the whole thing automatically by law. Now, there are two ways to own property — tenants in common and jointly with right of survivorship. The right of survivorship is magic language and if it doesn’t show up on the deed, then no matter what else it says, the property’s owned as tenants in common. With tenants in common, half of that property is going through probate or whichever percentage of the property is owned by the person who has passed away. Also, life insurance or 401ks — anything with beneficiary designations which have live beneficiaries — bypass probate. They go straight to those beneficiaries. Now, if the beneficiaries have predeceased, then that stuff will end up going through probate. But as long as there are valid beneficiary designations in place, those things aren’t going through probate. It doesn’t matter if it says in the will that, so-and-so gets the contents of my 401k, all it matters is whether so-and-so is actually the beneficiary designated on the 401k.
So if you’ve got more questions about what does not go through probate or what does go through probate, I’d be happy to talk to you. Thanks.
For more on this topic, you can read our blog Assets That Pass Outside Your Will and Probate.
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