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What determines what goes through probate? It is just property that goes through probate?
Asked on June 9, 2009 under Estate Planning, Missouri
M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney
Answered 12 years ago | Contributor
Generally, probate assets are those assets in the decedent's sole name at death or otherwise owned solely by the decedent and which contain no provision for automatic succession of ownership at death. For example:
- a bank account in the sole name of a decedent is a probate asset, but a bank account held in-trust-for (ITF) another, or held jointly with rights of survivorship (JTWROS) with another, is not a probate asset;
- a life insurance policy, annuity or individual retirement account that is payable to a specific beneficiary is not a probate asset, but a policy payable to the decedent's estate is a probate asset;
- real estate titled in the sole name of the decedent or as a tenant in common with another person, is a probate asset (unless it is homestead) but real estate held as joint tenants with rights of survivorship or as tenants by the entirety is not a probate asset;
- property owned by husband and wife as tenants by the entirety is not a probate asset on the death of the first spouse to die, but goes automatically to the surviving spouse.
This list is not exclusive but is intended to be illustrative.