Probate Assets - Do Household Items go through Probate | Trust & Will (2024)

Prioritizing your Estate Planning early on is doing your part to mitigate the stress your family and loved ones will face when dealing with your affairs after you’ve passed. When you fail to get organized in advance, your estate may become subject to an extensive probate process that could have otherwise been avoided.

[Need help with probate? We offer helpful probate services and will work with you to find the plan that meets your needs.]

One way to ensure that your assets are distributed how you wish is to create a Will or Living Trust, where you name beneficiaries for specific assets. Another way to prepare is by educating yourself on the differences between probate assets and non-probate assets.

What Types of Assets are Subject To Probate?

Any assets that are titled in the decedent's sole name, not jointly owned, not payable-on-death, don’t have any beneficiary designations, or are left out of a Living Trust are subject to probate. Such assets can include:

Assets that fall under the tenants-in-common category are also subject to probate. This is when two or more individuals own a designated portion of a single asset. Any of the assets listed above can be considered tenants-in-common property if they are created that way. For example, if you own 50 percent of a tenants-in-common asset, you can name a beneficiary for your portion of that asset in your Will. Don’t worry — we’ll dive deeper into the differences between tenants-in-common and joint tenancy with rights of survivorship below.

Do Household Items Go Through Probate?

In short, yes. Household items do have to go through the probate process as they are considered probate assets with no explicit or individual title. These assets (items like furniture, clothing, collections, artwork, jewelry, etc.) typically have little monetary value but can have serious sentimental value. In most cases, the executor of the estate will distribute such assets accordingly. However, if there’s a specific household item a person deems extremely important, it can be enumerated in his or her Living Trust, thus avoiding probate.

How Much does an Estate have to be Worth to Go Through Probate?

Bigger isn’t always better when it comes to Estate Planning as more modest estates can avoid probate court entirely. For example, In California, your estate will not be subject to probate if the total of your remaining assets is less than $150,000. Remaining assets are only those that are considered probate assets. This means that even if you have a larger estate as a whole, you may be able to take advantage of a simpler (or non-existent) probate process.

Let’s say Frank has a $500,000 jointly owned property, a $300,000 bank account for which a payable-on-death beneficiary has been named, a $100,000 life insurance policy, $50,000 of assets under a Living Trust, and a solely-owned car worth $20,000. On first glance, one might assume that Frank’s estate is valued at $970,000 and therefore subject to probate. But because the car is his only probate asset, his estate would likely be able to avoid probate in most states.

Keep in mind that what qualifies as “small” varies from state to state; so be sure to check your municipality’s specific probate laws.

Which Assets are Not Considered Probate Assets?

While many assets are required to go through probate, namely those mentioned above, there are certain assets that can avoid the process. Here are several specific examples:

  • Life insurance or 401(k) accounts where a beneficiary was named

  • Assets under a Living Trust

  • Funds, securities, or US savings bonds that are registered on transfer on death (TOD) or payable on death (POD) forms.

  • Funds held in a pension plan

  • Wages, salary, or commissions due the deceased person (only up to a certain amount depending on the state)

  • Cars or boats registered in TOD form

  • Vehicles or other household goods that are distributed to immediate family members (laws vary by state)

To clarify even further, there are three types of assets that in most cases can avoid the probate process: jointly owned assets, beneficiary designations, and trust assets. Keep reading for a breakdown of each.

Jointly Owned Assets

Jointly owned assets, also known as joint tenancy with rights of survivorship, can be anything you own with another person. For example, if you own a property with your spouse and both of your names are listed on the title, it would be considered a jointly owned asset. The same goes for bank accounts. When you die and have jointly owned assets, the ownership of those assets will be transferred to the surviving person.

It’s important to note that the transfer of ownership happens immediately upon death. So even if your Will states that you want your share of the jointly owned asset to be distributed to your surviving children or siblings, the asset will still go to the remaining owner. To avoid this, you must name a new owner before you die.

Tenancy in common is another type of joint ownership that we mentioned above. This type of ownership allows you to designate in your Will how you want your share of the joint asset to be distributed (meaning you can name a child or sibling co-owner of the asset instead of it going entirely to the surviving owner). Keep in mind, though: tenancy in common assets do have to go through probate.

Beneficiary Designations

Assets like health or medical savings accounts, life estates, life insurance policies, retirement accounts — including IRAs and 401(k)s — and annuities allow you to name a beneficiary. This means that when you die, those assets will be given directly to the person you appointed without having to go through probate. However, there are a few important exceptions to point out: If the beneficiary you name passes away before you, becomes incapacitated, is a minor, or is your estate (while rare, some do name their estate a beneficiary), the asset(s) will still have to go through probate.

Trust Assets

Any asset you name in your Living Trust can avoid probate unless you have a Trust in your Will (called a Testamentary Trust). If this is the case, your Will must go through probate before the Trust goes into effect. To avoid this, be sure to update your Living Trust regularly as you acquire new property or other important assets.

No one likes to think about their own death, but doing so in advance is the best way to ensure your heirs receive what is rightfully theirs. Understanding the differences between probate and non-probate assets will allow you to create a Will or Living Trust you can be confident in. Here at Trust & Will, we’re determined to simplify your Estate Planning process so that your legacy is left intact. If you need help with Probate we can help!

Probate Assets - Do Household Items go through Probate | Trust & Will (2024)

FAQs

Probate Assets - Do Household Items go through Probate | Trust & Will? ›

Any assets held by the deceased party alone that do not already have a named beneficiary must go through probate court in New Jersey. In general, the probate process in New Jersey is cheaper and easier than in many other states, even for high asset estates.

Which of the following items will pass through probate? ›

This can include vehicles, land, houses, bank accounts, investment accounts, stocks, bonds, and business interests. If your name is the only name listed on the deed, title, or account, then the items won't pass on to your beneficiaries without going through the probate process first.

Are household items considered assets? ›

Assets under the sole ownership of the decedent without a designated beneficiary, not payable-on-death, jointly owned, or not handled in a Living Trust are subject to probate. Such property could include: Vehicles. Household items.

Which of the following assets do not go through probate? ›

First and foremost, there are a number of asset types that typically do not pass through probate. This includes life insurance policies, bank accounts, and investment or retirement accounts that require you to name a beneficiary.

Which of the following assets are non-probate assets? ›

Common examples of non-probate assets are life insurance proceeds, jointly-held property, will substitutes, and inter vivos trusts.

Which of the following assets would not be included in the decedent's probate estate? ›

When properly established, the following assets will not be subject to the probate process: Property that is jointly owned with a right of survivorship or tenancy by the entirety, often used for real estate or shared bank accounts. Assets placed in a revocable living trust during the decedent's lifetime.

Which of the following assets would pass through probate? ›

Probate assets include: Real estate, vehicles, and other titled assets owned solely by the deceased person or as a tenant in common with someone else. Tenants in common don't have survivorship rights. The owners can bequeath their share of the property to someone else.

What assets do not pass through a will? ›

The most common classes of assets that do not pass through the estate or according to the terms of the Will are: (1) assets owned jointly by the testator and another person, (2) assets that have beneficiaries designated, and (3) assets owned by a trust.

What are examples of household assets? ›

Assets include owned homes, vehicles, financial accounts, retirement accounts, stocks, bonds and mutual funds, and more. Debt refers to home mortgage loans, education loans, credit card balances, and any other loan or credit extended to the household.

Are possessions considered assets? ›

You'll acquire many things throughout your life, from the tchotchkes nestled on your bookcase to the house where you raise your family. These possessions are known as your assets, and can include any type of physical, financial, or digital property that you own.

Which assets from the estate of which individual avoid probate at that individual's passing? ›

Smaller estates, estates with assets held in a living trust, and those with assets passing by beneficiary designation or joint ownership may be exempt from probate.

Which of the following accounts avoid probate upon death of an owner? ›

Totten trust, also known as a payable-on-death account, avoids probate because it allows a beneficiary to claim the assets directly. JTWROS, which stands for Joint Tenants with Rights of Survivorship, also bypasses probate by granting the surviving owner full ownership upon the death of the other.

Can you empty a house before probate in Florida? ›

If the house is included in the probating of an estate, you may not be able to take anything out of it until the probate process is complete. The personal representative or executor of the estate must take inventory of all the assets, including the contents of the house.

What is an example of a non real estate asset? ›

Life Insurance Policies

One of the most common non-estate assets is a life insurance policy. Even if a life insurance policy was owned by the deceased, the proceeds pass according to the terms of the policy.

What is the difference between estate assets and non estate assets? ›

Property that you can distribute by the terms of a Will are referred to as estate assets. If property is not an estate asset then they are not distributable by a Will. It could be that they are distributable according to the discretion of a third party or pass to another person automatically.

Can the IRS take non-probate assets? ›

Non-probate property in the hands of a trustee or transferee is encumbered by the estate tax lien and the Service may levy upon the property to collect unpaid estate tax based on the lien.

Which is an example of probate property quizlet? ›

What are some examples of probate property? Real property owned in severalty or in tenancy in common life insurance proceeds payable to the estate, gain from the sale of a business, social security benefits.

Which of the following is a commonly used way to avoid probate? ›

Establish a living trust: This is a common way for people with high-value estates to avoid probate. With a living trust, the person writing the trust decides which assets to put into the trust and who will act as trustee. When the trust owner dies, the trustee will divide the assets outside of probate.

Do brokerage accounts go through probate? ›

Each party has equal right to the account's assets. Each party also has the right of “survivorship”—when one co-owner dies, all the assets in the account can pass to the other co-owner(s) without going through probate.

Do all wills go through probate in Michigan? ›

Although most property is required to go through probate, there are certain cases where probate isn't necessary. Examples of assets that don't need to go through this process include: Assets that are held within a trust (i.e Revocable Living Trust)

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