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Back to the Basics – Probate and Non-Probate Assets

The law can often be confusing. One such term includes probate in reference to a will. It is important for people to understand exactly what probate is and what assets are required to go through probate in New York. Keep in mind that these are general definitions and examples, and your individual circumstances will often impact exactly what assets are considered probate or non-probate.

What is probate?

Basically, probate is the legal process that takes place after a person has died. Usually, the probate process begins by proving whether or not the deceased person’s will is valid if a will exists. The process may also include:

  •      Identifying property to be distributed by the will;
  •      Having such property appraised;
  •      Paying off all debts and taxes the deceased person or their estate was responsible for; and
  •      Distributing remaining property as per the terms of the law or in accordance with state law if no will exists.

Usually, probate involves an appearance by the lawyer associated with the will being probated. Costs associated with the probate process, such as court costs and legal fees, are typically paid from the deceased person’s estate using assets that would otherwise be distributed to those named in the will or entitled to them by state law. In many cases, the probate process is routine and straightforward. However, if the will is contested, the process can be lengthy and complicated. While it is extremely important to have a will to protect assets you have worked your entire lifetime for and ensure that such assets are distributed according to your wishes, it is important to remember that wills and probate generally only apply to probate assets.

What are probate assets?

Probate assets are usually those that are individually owned and not bound by a contract. Depending on the individual, this could include bank accounts and other individually-held financial assets. Probate assets also include personal property like jewelry, artwork, furniture, cars, property in only the decedent’s name, and/or certain types of property interests. While jointly-held assets – typically including things like a family home – are generally not subject to probate, there are many instances when these types of assets are held only by one individual and then become subject to probate.

What are non-probate assets?

Non-probate assets are generally those involving mutual ownership or that are governed by a contract. Non-probate assets also include those in which you designate a beneficiary as part of the formalities related to the asset. These typically include assets like jointly-owned real estate, retirement accounts, and life insurance policies. For instance, when you take out an insurance policy you are typically required to name a beneficiary and, in some cases, a secondary beneficiary. This type of insurance policy will be distributed upon your death according to the wishes you have expressed in nominating a beneficiary and, if applicable, a secondary beneficiary. It is always a good idea to make sure that companies in charges of handling these types of assets have accurate, up-to-date records that correctly express your wishes because attempting to distribute these assets in your will in a way that differs from how they are to be contractually distributed will often not override the contractual obligations under law.

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