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Probate Assets

Not every asset owned by a party at the time of death will be subject to the probate process or pass under the direction of the will. Probate assets are those for which there is no pre-existing designation as to who should get the asset. Examples of typical assets that will be subject to probate include individually owned bank accounts, cars, personal property, business interest, real property held as tenants in common, cash, and life insurance with no beneficiary. These types of assets should be distinguished from any account with a beneficiary designation as those accounts will pass to the beneficiary. Also, joint accounts will usually go to the other party whose name is on the account.

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Assets that are put into joint names within a year of date of death can still be subject to inheritance tax on the full amount of the account though ultimately a non-probate asset. If assets have been put into joint names over a year from date of death then only 50% of the account would be taxed. Ideally, you should plan for how those taxes will be apportioned. Business interests may also end up being non-probate if there is a partnership agreement spelling out what happens in the event of death. If there is a buy-out of the decedent's interest, that is taxable and should be listed on the inheritance tax return. Where the decedent's interest is just assumed by the remaining partners in the business then there is no tax and no need to do probate.

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