Probate & Assets: FAQ

Which assets need to go through Probate?

Generally, all assets owned by the decedent at the time of death require probate to be transferred.

Assets that have a designated beneficiary are held in a trust, are payable on death, or are jointly owned with rights of survivor are usually not considered probate assets since upon the death of the decedent the ownership transfers and the asset is no longer considered owned by the decedent nor their estate. 

If you are unsure if an asset requires probate, we recommend doing the following: 

  • Checking for designated beneficiaries
  • Checking the ownership (deed/titled/account/etc.) and to see if:
    • The asset is owned by a Trust
    • The asset had joint ownership rights of survivors
    • There is a Transfer on Death (TOD) agreement

What are 'ancillary assets'?

When ancillary estates are opened, the estate is viewed separately from the primary estate.  

The primary estate consists of assets tied to the state where the decedent was a resident and any non-state-specific assets (such as bank accounts). The ancillary estate consists only of the assets tied to the estate where ancillary probate was opened (often physical assets). 

Since ancillary probate is based on just the assets in a certain state, it is possible for an ancillary estate to qualify for simplified procedures (assuming the procedure allows for ancillary assets). Primary probate is typically kept open until all ancillary cases are closed since the ancillary cases are usually contingent upon the personal representative having been appointed in the primary state. 

What is 'exempt property'?

Exempt property refers to assets that can be protected from creditor claims or debts of the decedent.

Generally, exempt property is intended to protect the surviving spouse or dependents from being left without essential resources after the deceased person's debts are paid off and their estate is distributed. The requirements and specifications of exempt property vary by state. They can usually include: personal property up to a certain amount, vehicles, and in some instances, homestead property. Many states have additional forms required to declare exempt property.

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