July 17th, 2023

What is a Probate Asset?

Have you ever heard of the parent who died, leaving a Will for assets to go equally among all children, but one child receives the entirety of a major asset (a house, a certain bank account, a life insurance policy)? This will sometimes happen because the person who signed the Will did not understand the difference between probate assets and non-probate assets.

When someone passes away, that person’s assets are distributed according to the terms of his or her Will, if they have one, or if not, by PA intestate succession laws. However, not all assets get distributed in accordance with a decedent’s Will or intestate succession rules. During the estate planning process, it is important for individuals to consider which assets will be subject to the distribution scheme set forth in the Will (probate assets), and which assets will be distributed outside of those wishes expressed in the Will (non-probate assets).

Probate assets are assets titled solely in the decedent’s name without any designation of a beneficiary, and this term includes assets that the decedent owns jointly as a tenant in common with another person. These assets will be distributed in accordance with the Will or via intestacy laws. The probate process is designed to collect and distribute the decedent’s assets, provide evidence of title transfer to new owners, establish a procedure for creditors to collect debts, and resolve conflicts among heirs and beneficiaries.

In contrast, non-probate assets are not transferred according to the terms of a person’s Will or intestacy. Common examples of non-probate assets include joint assets, assets in trust, life insurance policies, retirement benefits, and multi-party bank accounts. 

  1. Joint Assets

Assets held as joint tenants with right of survivorship or tenants by the entirety will not be distributed according to the terms of a decedent’s Will. This is because more than one person owns the asset, and upon the decedent’s death, the decedent’s portion of the asset will transfer to the other owners. 

  1. Assets in Trust

A trust is a legal relationship whereby one party holds title to and manages property for the benefit of another. Trusts agreements direct the distribution of assets upon the happening of specific events or death. Assets may be held in trust for various estate planning purposes. Because these assets are titled in the name of a trustee who acts in accordance with the trust instrument, these assets will not be distributed according to the terms of a decedent’s Will, but instead will be distributed in accordance with the terms of the trust.

  1. Life Insurance

The proceeds of life insurance policies generally are distributed to the beneficiaries listed on the beneficiary designation form. If the beneficiary designation form is not completed, or the persons designated as beneficiaries have died before the insured on the policy, then the life insurance proceeds will be distributed in accordance with the terms of the life insurance contract. The life insurance contract may direct that the proceeds be distributed to the insured’s estate or to the insured’s heirs.

  1. Retirement Accounts

Proceeds from retirement accounts are also distributed to the persons identified on the beneficiary designation form for each retirement account. Similar to life insurance policy contracts, if the beneficiary designation form is not completed or identifies a beneficiary who has died before the account owner, then the retirement account will be distributed in accordance with the terms of the financial institution’s contract for retirement accounts.

  1. TOD/POD/ITF Account Designations

Banks and brokerage firms will provide an option for you to designate beneficiaries on your accounts at those institutions. These are sometimes referred to as POD (payable on death), TOD (transfer on death, or ITF (in trust for) accounts. These designations will cause these specific accounts to be distributed to the designated TOD/POD/ITF beneficiary on the specific account. Accounts with these designations are not probate assets and will not be distributed in accordance with the terms of the deceased owner’s Will.

In conclusion, it is essential to consider both probate and non-probate assets during the estate planning process. A Will addresses the distribution of only probate assets. Non-probate assets will be distributed directly to beneficiaries, and the distribution scheme can be significantly different than the distribution scheme outlined in your Will. It is imperative that individuals engaging in estate planning seek advice of experienced counsel to assist them in identifying their probate and non-probate assets.

Attorney R. Nicholas Nanovic is the lead Estate Planning attorney at Gross McGinley and has been named to the Super Lawyers – Ones to Watch eight times and counting. 

Christina Marinos is a 3rd year law student at Drexel University Thomas R. Kline School of Law and is in her 2nd year in the Gross McGinley Summer Associate Program.

The content found in this resource is for informational reference use only and is not considered legal advice. Laws at all levels of government change frequently and the information found here may be or become outdated. It is recommended to consult your attorney for the most up-to-date information regarding current laws and legal matters.