When someone calls our office after the death of a loved one, typically the first topic of discussion is whether there are any probate assets. Probate assets must become part of the deceased person’s estate and be distributed to others by the executor. Non-probate assets pass to another person by some other mechanism. Common non-probate assets include jointly owned bank accounts, any account with a specific individual listed as the (payable on death) beneficiary, and real property owned with another person as joint tenants with rights of survivorship. Common probate assets are real property and individually owned bank accounts.
Generally, non-probate assets are preferable because they pass more quickly to the beneficiary. Probate assets require an intermediate administrative step through the probate court before they can be distributed. A good way to make sure your assets are non-probate is to use a revocable trust rather than a will for the distribution of your estate after your death. Revocable trusts avoid probate and allow for more detailed planning and more contingencies to be covered than beneficiary designations or joint ownership alone.