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Estate Planning Lawyers: Guide to Probate & Non-Probate Assets



Estate Planning

Estate planning lawyers are professionals who assist in the process of estate planning. They help their clients draft wills, trusts, and other estate-planning documents that can protect their family members and assets from being taken by the state or a creditor.

There are two main types of assets: probate assets and non-probate assets. Probate assets are those which will be subject to the probate process when a person dies. Probate process refers to a court-supervised process of authenticating the last will and testament of the deceased.  

Non-probate assets do not go through this process because they pass directly to heirs without going through the court system. Continue reading more about estate planning lawyers and how they take care of the distribution of assets of the deceased. 

What is the Probate Process?

Property owned by a deceased individual might be either probate or non-probate. Estate planning lawyers can help you understand the distinction between probate and non-probate assets. When someone passes away, their assets may be dispersed in one of two ways, depending on whether or not they are probate or non-probate property.

Probate property is all that you’ll have access to if you have a will. Without a will and without going through probate, non-probate assets can be given to whomever you choose. Personal property that is wholly in your name is typically considered probate property. Most assets that avoid probate can be transferred automatically upon the owner’s death, thanks to a beneficiary designation.

The probate process is used to settle a person’s estate after death. During probate, any outstanding debts and financial matters of the person who died are taken care of. Commonly with the help of estate planning lawyers.

Administrators of the estate are chosen by the person who died or by the court. They make an inventory and gather the property. After paying off all of the estate’s creditors and debtors, the remaining property is given out according to the will.

When a person dies without leaving a will, their property will go to their heirs according to intestate succession laws in their state. Depending on the estate’s complexity, the probate process can take up to a year. If someone challenges the will of the person who died or the intestate succession and goes to court, the probate process can be held up for a long time.

A crucial component of probate is determining whether an asset is a probate asset or a non-probate asset.  Will lawyers and probate lawyers can help you deal with these. 

Differentiating Probate and Non-Probate Assets

All property that was only in the name of the person who died is called probate property. All of the following are considered probate assets:

  • Owned or held as a tenant in common real estate is not subject to the intestacy rules.
  • Investments and life insurance plans with the decedent or the estate named as the sole beneficiary.
  • Funds in a bank account that was completely in the name of the deceased.
  • Acquired elements that are not a part of a building’s structure or infrastructure.
  • Participation in a partnership, limited liability company, or corporation.

On the other hand, assets that don’t have to go through probate are those that are owned by more than one person. In other words, an asset is not part of the estate if the person who died owned it with someone else. Most things that are owned by more than one person are owned “jointly with rights of survivorship.” When one owner dies, the rights to the property or asset automatically go to the other named owner.

How Can Estate Planning Lawyers Help?

It’s not uncommon to feel overwhelmed when it’s finally time to put pen to paper with all of your goals. The thought of life moving on when you are not going to be physically present to oversee things can sometimes be daunting.  It is however prudent to employ the services of an estate planning lawyer to plan for management of your estate during and after your lifetime.  Here are some legal issues that estate planning lawyers can assist you with. 

1. Power of Attorney

A power of attorney is a legal document that authorizes another person to act on your behalf in a certain situation. If you ever lose the ability to make your own choices due to illness or injury, this can be a lifesaver. Power of attorney lawyers will work with you to determine who would be the best person to act as your power of attorney. They will then create legally enforceable forms for power of attorney, giving that person that ability.

2. Living Wills

Living wills definition includes a formal declaration of your healthcare preferences in the case of your incapacity. It is a legal document that allows you to outline your preferences for medical treatment in the case of a terminal disease or other life-threatening condition.

3. Wills

It is a legal document that sets forth your wishes for the distribution of your possessions after your passing. Your assets will be dispersed in accordance with intestate succession laws if you pass away without leaving a will.

FAQ Estate Planning Lawyers and Probate

1. What does an estate planning attorney do?

Estate planning lawyers serve a variety of purposes, such as helping individuals create a Will, draft trusts, and make other important decisions concerning their estate.

2. What does a probate lawyer do?

A probate or inheritance lawyer helps the executor of a will or the beneficiaries of an estate through probate, from determining who is entitled to what and how much to distributing the estate’s assets and inheritances.

3. What do landlord tenant lawyers do?

Any problems you have with your landlord will be handled on your behalf by a tenant attorney. 

4. What is power of attorney vs conservatorship forms for living wills?

Your wishes on any medical care you would or would not like at the end of your life should be stated clearly in a Living Will. A power of attorney makes it possible to have a reliable person manage your business.

5. What are living wills vs living trusts? 

Trusts safeguard assets and carry out owners’ wishes. Trusts can be used during life and after death, unlike wills. Both a will and trust helps with estate planning.

Final Words

You should think about both your probate and non-probate assets when selecting who should get them after your death. Sometimes, even with a trust, things go wrong, and you have assets in probate that you didn’t expect to have in probate. Your trust might not be valid under the law if it hasn’t been properly funded or if the beneficiaries haven’t had their property designations updated. Talking to a knowledgeable estate planning attorney is the best method to make sure your assets go to the people you want them to.