What Assets are Not Considered Part of an Estate?

What Assets are Not Considered Part of an Estate?

In many families, more assets pass outside the Last Will than through the Last Will. Think about non-probate assets: life insurance proceeds, investment accounts, jointly titled real estate assets, assuming they were titled as joint tenants with right of survivorship, and the like. These often add up to considerable sums, often more than the probate estate.

This is why a recent article from The Mercury titled “Planning Ahead: Pay attention to your non-probate assets” strongly urges readers to pay close attention to accounts transferred by beneficiary.

Most retirement accounts like IRAs, 401(k)s, 403(b)s and others pass by beneficiary designation and not through the Last Will. Banks and investment accounts designated as Payable on Death (POD) or Transfer on Death (TOD) also do not pass through probate, but to the other person named on the account. Any property owned by a trust does not go through probate, one of the reasons it is placed in the trust.

Why is it important to know whether assets pass through probate or by beneficiary designation? Here’s an example. A man was promised half of this father’s estate. His dad had remarried, and the son didn’t know what estate plans had been made, if any, with the new spouse. When the father passed, the man received a single check for several thousand dollars. He knew his father’s estate was worth considerably more.

What is most likely to have happened is simple. The father probably retitled the house with his new spouse as tenants by the entireties–making it a non-probate asset. He probably retitled bank accounts with his new spouse. And if the father had a new Last Will created, he likely gave 50% to the son and 50% to the new spouse. The father’s car may have been the only asset not jointly owned with his new spouse.

A parent can also accidently disinherit an heir, if all of their non-probate assets are in one child’s name and no provision for the non-probate assets has been made for any other children. An estate planning attorney can work with the parents to find a way to make inheritances equal, if the intention is for all of the children to receive an equal share. One way to accomplish this would be to give the other children a larger share of probated assets.

Any division of inheritance should bear in mind the tax liability of assets. Non-probate does not always mean non-taxed. Depending upon the state of residence for the decedent and the heirs, there may be estate or inheritance tax on the assets.

Placing assets in an irrevocable trust is a commonly used estate planning method to ensure inheritances are received by the intended parties. The trust allows you to give very specific instructions about who gets what. Assets in the trust are outside of the probate estate, since the trust is not owned by the grantor.

Your estate planning attorney will be able to review probate and non-probate assets to determine the best way to achieve your wishes for your distribution of assets.

Reference: The Mercury (April 12, 2022) “Planning Ahead: Pay attention to your non-probate assets”

Can I Avoid Probate?

Can I Avoid Probate?

If you have life insurance, lifetime survivor benefits, a home or other investments, who gets them and when depends on what you have done or should do: have an estate plan. This is how you legally protect your family and friends to be sure that they receive what you want after you die, says the article “How (and why) to avoid probate: A slap at your family!” from Federal News Network.

A common goal is to simplify your estate plan to make administering it as easy as possible for your loved ones. This usually involves structuring an estate plan to avoid probate, which can be time-consuming and, depending on where you live, add a considerable cost to settle your estate.

There are a number of ways to accomplish this through an estate plan, including jointly owned property, beneficiary designations and the use of trusts.

Many individuals hold property in joint names, also known as “tenant by the entirety” with a spouse. When one spouse dies, the other becomes the owner without probate. It should be noted that this supersedes the terms of a will or a trust.

Another type of joint ownership is “tenancy in common,” However, property held as tenants in common does not avoid probate. The distribution of property titled this way is governed by the will. If there is no will, the state’s estate laws will govern who receives the property on death of one of the owners.

Beware: property owned jointly is subject to any litigation or creditor issues of a joint owner. It can be risky.

Beneficiary designations are a seamless way to transfer property. This can take the form of a POD (payable on death) or TOD (transfer on death) account. Pensions, insurance policies and certain types of retirement accounts provide owners with the opportunity to name a beneficiary. Upon the death of the owner, the assets pass directly to the beneficiary. The asset is not subject to probate and the designations supersede the terms of a will or trust.

Review beneficiary designations every time you review your estate plan. If you opened a 401(k) account at your first job and have not reviewed the beneficiary designation in many years, you may be unwittingly giving someone you have not seen for years a nice surprise upon your passing.

If you own assets other than joint property or assets without beneficiary designation, an estate planning attorney can structure your estate plan to include trusts. A trust is a legal entity owning any property transferred into it. A trust can avoid probate and provide a great deal of control by the grantor as to what they want to happen to the property.

Reference: Federal News Network (March 30, 2022) “How (and why) to avoid probate: A slap at your family!”

Do You Have to Go through Probate When Someone Dies?

Do You Have to Go through Probate When Someone Dies?

Probate is a required court proceeding under certain circumstances, although the rules surrounding probate are slightly different from state to state. In Hawaii, if a person dies owning real estate in their own name or if the total value of personal property is worth more than $100,000, their estate must be probated. In other states that threshold may be lower. Most states require probate regardless of the estate’s value, unless the estate assets are arranged to avoid probate.

This is explained in a recent article “Estate Planning Insights—Understanding Probate” from The Hawaii Herald.

Probate also requires written notice to be sent to the persons named in the will and to persons who would have inherited, if there had been no will. This is a big reason why many people use trusts and other alternative estate planning strategies. In addition, a will becomes part of the public record when it goes through probate, so creditors and others can see your will and learn all about your estate. So can estranged family members, ex-spouses, people looking for sales leads and thieves!

If there is no will, assets are distributed according to the state’s law of intestacy. These laws specify who receives inheritances, based on kinship. If a will is deemed invalid by the court, then the will is discarded, as are your wishes, and the laws of intestacy take over. This is another reason to work with an experienced estate planning attorney to create a properly prepared will and estate plan.

Probate can be a time-consuming process, delaying the distribution of assets. If the estate is complex, the process could take years.

Certain assets do not go through probate. These includes assets held by two or more people as “joint tenants” or “tenants by the entirety.” Real estate, checking accounts, saving accounts, and investment accounts can be owned this way. However, there can be pitfalls. If one person has debts, creditors may come after the assets, regardless of who the original owner may be.

Assets with a named beneficiary do not go through probate. This includes life insurance, IRAs, 401(k)s, annuities, savings bonds, “Transfer on Death (TOD accounts) and “Pay on Death” (POD accounts). It is very important to review all beneficiary designations every few years. Someone you may have named as a co-owner twenty years ago may no longer be in your life, or you may want to change the beneficiary. If you do not make any changes, whoever you originally named on the account will receive the assets.

Trusts are used to avoid probate, while directing what will happen to assets when you die. A Revocable Living Trust allows you to maintain control over the assets while living, but because you still have control over the assets in the trust, they are considered a countable asset by Medicaid.

To protect your assets from going through probate and to prepare for possible long-term care needs, an estate planning attorney can create a plan, possibly including a Medicaid Asset Protection Trust (MAPT).

Reference: The Hawaii Herald (Jan. 21, 2022) “Estate Planning Insights—Understanding Probate”