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Why do some assets avoid probate while others don't


Why do some assets avoid probate while others don't

Why do some assets avoid probate while others don't

Assets avoid probate when they are set up in a way that allows for the direct transfer of ownership upon the death of the owner, bypassing the need for court intervention. Here are the main reasons why some assets avoid probate while others do not:

  1. Joint Ownership with Right of Survivorship:
    • Assets owned jointly with the right of survivorship automatically pass to the surviving owner(s) upon the death of one owner. This type of ownership is common with real estate, bank accounts, and brokerage accounts.
  2. Beneficiary Designations:
    • Many financial assets, such as life insurance policies, retirement accounts (e.g., IRAs and 401(k)s), and payable-on-death (POD) or transfer-on-death (TOD) accounts, allow the owner to name beneficiaries. Upon the owner's death, these assets transfer directly to the designated beneficiaries without going through probate.
  3. Trusts:
    • Assets placed in a revocable living trust avoid probate. The trust holds legal title to the assets, and upon the grantor’s death, the successor trustee can distribute the assets according to the terms of the trust without probate court involvement.
  4. Small Estate Procedures:
    • Many states have simplified procedures for small estates that fall below a certain value threshold, allowing these assets to bypass the formal probate process. The specific thresholds and procedures vary by state.

Assets that typically do go through probate include:

  1. Solely Owned Property:
    • Assets that are in the deceased’s name alone and have no designated beneficiary or joint owner typically go through probate. This includes real estate, personal property, and bank accounts not set up with POD or TOD designations.
  2. Personal Effects:
    • Items such as jewelry, furniture, vehicles, and other personal property that do not have title documents or beneficiary designations usually go through probate.
  3. Real Property Without Right of Survivorship:
    • Real estate owned solely or as tenants in common with others (without rights of survivorship) generally must go through probate to transfer the title to the heirs.


Dorsey's Realty Disclaimer -  

Remember, consult with an attorney specializing in probate and trust matters to ensure that the disclaimer meets the specific legal requirements and addresses the unique circumstances of your situation. This disclaimer is a general example and may need to be customized to fit the specific circumstances and legal requirements of the probate estate or trust you are dealing with. It is always advisable to consult with a legal professional to ensure compliance with relevant laws and regulations. 

Contact your dedicated Certified Residential Real Estate Probate Specialist 

Fred Dorsey "Prince of Probate" to schedule a telephone conversation. 301.760.2178




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