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What’s the Difference between Probate Assets and Non-Probate Assets?

Non-probate assets are those assets which do not go into an estate when the owner dies.

POSTED ON: February 7, 2022
estate plan
Probate Assets and Non-Probate Assets

Reviewing your probate assets and non-probate assets is an important estate planning task. They’re easy to fix while you are alive, but the problems created by ignoring these tasks occur after you have passed, when they can’t be easily fixed or, can’t be fixed at all. The article “Who gets the brokerage account?” from Glen Rose Reporter shares one family’s story.

The father of three children had an estate plan done when the children were in their twenties. His Last Will and Testament directed all assets in a substantial brokerage account to be equally divided between the three children.

His probate assets and non-probate assets — as well as his Last Will — were never updated.

Thirty years later, his two sons are successful, affluent physicians with high incomes. His daughter is a retired educator who had raised two children as a single mom and struggled financially for many years.

When her father met with his investment advisor, he signed a beneficiary designation leaving the substantial brokerage account, including the substantial growth occurring over the years, to his daughter.

When he dies, the two brothers claim his Last Will, dividing all assets equally, must be the final word. They insist the brokerage account is to be divided equally among the three children.

Any assets held in an account with a beneficiary designation are considered non-probate assets. They do not pass through the probate process. Their disposition is not controlled by the Last Will. The contract between the institution and the individual is paramount.

Insurance policies, retirement accounts, bank and brokerage accounts usually have these designations. They often include a pay-on-death provision, and the person who is to receive the assets upon death of the owner is clearly named.

If the owner of the account fails to sign a right of survivorship, pay-on-death or to name a beneficiary designation before they die, then the assets are paid by the financial institution to the probate estate. This is to be avoided, however, since it complicates what could be a simple transaction.

The two sons were correctly advised by an estate planning attorney of their sister’s full and protected right to receive the investment account, despite their wishes. When the provisions in the Last Will conflict with a contract made between an owner and a financial institution, the contract prevails.

In this case, a less financially secure daughter and her family benefited from the wishes and foresight of her father.

Last Wills and beneficiary designations need to be reviewed and revised to ensure that they reflect how the parent wants their probate assets and non-probate assets managed.

Here at Sabrina Winters Law, we have helped hundreds of families in Charlotte manage probate and non-probate assets. Book a call with Sabrina to learn how we can help you!

Reference: Glen Rose Reporter (Jan. 13, 2022) “Who gets the brokerage account?”

Suggested Key Terms: Last Will and Testament, Estate Planning Attorney, Beneficiary Designation, Probate, Insurance Policies, Retirement Accounts, Right of Survivorship, Pay-On-Death Provision, Financial Institution

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