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What is Probate Estate?

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What is Probate Estate?

Probate estate is the entirety of a person’s belongings that are distributed through state laws upon their death.  This may include all real and personal property, as well as other non-physical assets like bank account funds and securities.  

The state judicial process during which the estate is distributed is known as “probate”.  The person’s estate will inevitably pass through probate if the person dies “intestate”, or without a will.  The probate process is generally considered unfavorable for many reasons. 

For example, the probate process can often yield an unequal distribution of property, or the property may go to a different recipient than was intended.  Probate hearings can often be time-consuming and confusing for the survivors.  Also, a large portion of the estate may “escheat”, or be claimed by the state, without any of the person’s survivors being able to claim it. 

The main mechanism for avoiding estate probate is to have written will in place before death.  There are several other ways to avoid probate, such as giving the asset away as a gift while the estate holder is still alive. 

Which Assets do Not Become Part of a Probate Estate?

Certain assets don’t pass through probate system and can be directly claimed by certain survivors.  These are called “non-probate assets”, and are said to “pass outside probate”.  Each state will have different statutes that determine which assets are subject to probate and which aren’t.  Here’s a listing of some non-probate assets:

Non-probate assets under common law:

  • Living Trusts
  • Community Property Agreements
  • Joint Tenancy Property
  • Joint bank accounts (with “right of survivorship”)
  • IRAs and other retirement funds

Most state statutes list these as non-probate assets:

  • Employment Benefit Contracts
  • Life Insurance Plans

Some assets may be converted into non-probate status under state laws, such as:

  • Bank Accounts and Credit Union accounts (up to a certain $ amount)
  • Unpaid Wages (up to a certain $ amount)
  • Social Security Benefits (up to a certain $ amount)
  • Some vehicles
  • Some US Savings Bonds
  • Certain IRS Tax Refunds

Again, the complete list of non-probate assets will vary according to state-specific laws.  There will also be different requirements associated with each asset, and different rules regarding which survivors can lay claim to the assets.

What do Probate Lawyers do?

The main function of a probate lawyer is to help with estate planning and to draft a will, so that the estate will avoid the probate process after death.  Estate planning involves many different tasks like identifying and classifying the different assets, and assigning them to the corresponding recipients.

Probate lawyers also do more than estate planning however.  For example, they can provide assistance if there are issues with the probate process after the person’s death.  Probate attorney are often involved if there are contested wills or other disputes over property.  

Do I Need a Lawyer for Issues with Probate Estate?

As you can see, issues with probate estate can often be very demanding, since the process involves basically all the person’s belongings.  It’s best to consult with an estate lawyer early on so as to avoid the state probate process.  A qualified estate planning attorney in your area can ensure that your assets are properly protected according to local laws. 

Photo of page author Ken LaMance

, LegalMatch Law Library Managing Editor and Attorney at Law

Last Modified: 02-23-2012 11:08 AM PST

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