It is helpful to know what happens to your probate vs. non-probate assets when thinking about your estate plan or your future inheritance. Do you really know how assets transfer upon your death? You may think there is a shortcut to use in your estate planning but read below to see what really happens.

First, there are in-court and out-of-court assets. In-court means that there is a type of asset that has to go through the probate court. Probate court is an extremely specific court that every county in the country has. Their job is to make sure that assets transfer properly. They make sure that the Will is correct and real, and that the proper heirs are notified. If someone dies with a Will, it’s called the probate process. If there is no Will, it is called the intestate process. By default, anything in your name or your name alone will go through probate.

What are the advantages of probate assets?

In general, the pros are related to a legal finality.

1. By going through the probate process there are safeguards in place. The court has procedures in place to protect people who may not be able to protect themselves. For example, if you are survived by minors (children) who don’t have the maturity to look out for their own interests, the court can appoint a temporary guardian. If you are survived by an heir with special needs, there is a procedure in place to make sure their best interests are protected.
2. Probate has processes to make sure final creditors and taxes are paid. If you close the estate properly, there won’t be lingering taxes. If you follow the probate procedure, you won’t be sued later by someone who comes after the estate. There is a 7-month statute of limitations against creditors once probate has taken place. If an executor is appointed on January 1st, any creditor (including the IRS) has 7 months from January 1st to submit their bill or claim. If they don’t do it during that time, they are out of luck.
3. Probate is all in a centralized place. If someone lived and died in Manhattan, and the next living heir lives far away, he might not know where the decedent stored his/her Will. However, if he knows that the person died in Manhattan, he can contact that courthouse to see if someone set up an estate.

What are the drawbacks of probate?

The cons are generally related to dealing with a government entity.

1. Probate process is slow. It can take from 9 months to a few years, and in some cases, even longer. It is long because there is a 7-month waiting period for creditors. There is a lot of paperwork to circulate among the heirs, executor, and court. Oftentimes these forms still need to be mailed, and sometimes these documents even have to be notarized. If multiple heirs have to get papers notarized, it can cause a lot of delay and friction. The process of using paper and wet signatures is unfortunately antiquated.
2. Another drawback are costs. You’ll need to pay court fees, attorney fees, accounting fees, Executor commissions, etc. All these things added up can be tens of thousands of dollars.
3. Probate is public. If you are a celebrity or a very private person, maybe having your private affairs accessible by the public is not desirable. For example, if you are in New Jersey, you can pull up James Gandolfini’s Will because his estate went through probate. This is also true for Prince and Frank Sinatra. If public access bothers you, then you may want to consider a non-probate method when planning your estate.

Examples of Non-Probate Assets

Probate means you have to go through court. The other option is having non-probate assets. These assets are anything with a named beneficiary or a named/joint owner. One example is life insurance. A life insurance company, for example, might require the beneficiary to turn in a claim form and death certificate in order to receive the money. This is a good thing to set up so there is some cash available while doing the rest of the probate.

Other examples of non-probate accounts are IRAs, retirement accounts, 401(k)s. There are tax benefits for naming your spouse or children as beneficiaries on IRAs and 401(k)s (talk to your tax advisor!).

If you are joint owners of real estate, the survivor automatically owns the whole thing. For example, a husband and wife own a condo in Manhattan. Husband dies, and the wife immediately owns 100% of the condo.

Even bank accounts can be set up as non-probatable assets. You can add a joint owner or use another method such as ITF (in trust for, TOD (transfer on death), POD (paid on death), Totten trust, and many other options.

Trusts are also non-probate assets. These can be revocable, living trusts, or grantor trusts. They act as a wrapper that you put around your assets so that they are no longer owned by you. Rather, they are owned by a trust with its own instructions with what happens when you pass away. These are used to avoid probate court.

You Can Change Your Assets from Probate to Non-Probate Anytime

Let's’ say that I bought a house before I got married, and it is my name alone. Then I can update the deed to add my wife after we married. I can add my wife easily to a bank account, etc.

Beware: Non-Probate Assets Override Wills

This is extremely important to understand. Let’s say my wife and I have our first child and I go through all of our accounts and name the baby as the secondary beneficiary. Then we have more kids and I forget about the beneficiary designations. Now that I have a big family, I decide to have a Will drafted to leave everything to my wife. If she dies, then I leave everything to my kids. However, the Will only controls anything that comes through probate. So, those beneficiary designations naming my first child will not go through my estate. Then my other kids get nothing from those accounts, even though I named them in the Will. This happens all the time – people forget!

Making Everything Non-Probate is NOT Estate Planning

You might think that making everything non-probate will save time and money. Don’t do that. Here’s why: people forget! Your monthly bank statements do not list your beneficiaries; there are no reminders for updating! Unless you are one of the few conscientious people who remember to update all account beneficiaries, there will be something that doesn’t match your intentions when you die.

For example, Kurt was in love with Jasmine. They weren’t married, but Kurt added Jasmine as beneficiary to his savings account. Unfortunately, Kurt and Jasmine separated. Decades later, Kurt got married and had a daughter. He had a very long, fulfilling life and all the while he maintained that bank account. When he passed, his daughter was going through the estate assets and had to find out why someone named Jasmine was getting all that money!

Hopefully, my examples have been helpful to you in your estate planning or in administering a loved one’s estate. Please check out my book, “How Probate Works,” which covers this and a lot of other topics.