What is Probate Property?

May 2017

If you were to Google the question “what is probate” the standard definition would appear, which reads, “the official proving of a will.” However, the legal definition is a little more specific. Probate is the process of transferring a deceased person’s “probate property” using the court system.

The next question in your mind is likely “what is probate property?”   Probate property includes, but is not limited to, assets held in the decedent’s name alone and assets co-owned with others as “tenants in common.”  Assets that are generally not considered probate property, and pass outside of the probate process generally include, but are not limited to, property held in “joint tenancy” and assets that allow a person to designate a beneficiary.

One simple way to think about what property might be considered “probate property” is to consider how the property would pass to someone else.  An IRA or 401k usually has a beneficiary designation, thus a decedent’s IRA or 401k is not typically a probate asset.  Life insurance typically has a beneficiary designation, thus life insurance proceeds are not typically probate property.  However, if a decedent had listed “my estate” as the beneficiary for their life insurance, those life insurance proceeds would be probate property.

One common misconception is that a Will controls all property upon someone’s death.  However, it is important to note that a Will only controls the “probate property.”

If you have questions about probate and/or what would be considered your probate property, reach out to FMJ’s Trusts & Estates attorneys or continue to follow our blog.

This post was written by Trusts & Estates attorneys David Ness and Matt Jensen. If you have any questions or would like to discuss your estate planning options, contact David at david.ness@fmjlaw.com or Matt at matthew.jensen@fmjlaw.com.