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Probate Assets Questions

Many people who have lost a loved one have undoubtedly had many questions or concerns involving the probate process or lack thereof. The unknowing of what probate assets are or how to get non-probate assets distributed often lead to questions like the ones answered below.

Are there any assets that pass outside of probate, non-probate assets?

There are assets that are non-probate assets. These are assets that will pass outside of the probate process. These non-probate assets include joint bank or brokerage accounts. Any joint bank accounts and or joint brokerage accounts will go automatically to the survivor. Any real property that is titled as joint tenants with right of survivorship or tenants by entirety will also go automatically to the survivor. Any type of retirement accounts, life insurance, annuities, etc. that has a listed beneficiary will also go directly to the beneficiary.

My husband died and he had a small life insurance policy. He did not have an Individual Retirement Account (IRA). What kinds of assets are probate assets and would need to pass through probate?

Assets that are considered probate assets that would need to pass through the probate process include real property that is not owned as joint tenants with right of survivorship or tenants by entirety. Personal property is a probate asset as well. If there are any assets that the transfer of title will be necessary, these will also be probate assets. Life insurance typically has a beneficiary listed and is a non-probate asset. However, if the life insurance policy lists the beneficiary as the estate rather than an individual then it will need to go through probate and will then be a probate asset.

In the state of Florida how does an individual receive probate assets if there is no probate from a parent who has passed away from over 10 years ago?

Probate is a necessary process to pass ownership of a deceased person to another person (heir/beneficiary). Probate is also effective in paying debts to creditors via the probate assets. In order for you to receive the assets that the state is holding you must begin the probate process. It is necessary in order for the ownership of these assets to be passed to the beneficiaries. Under Florida law, If a valid will was left and is admitted to probate court, then probate will not be an effective tool to pass the ownership of probate assets to the beneficiaries. If there was no will then probate is absolutely necessary in order for the ownership to pass to the people who are to receive them.

Is there any way to get assets from a parent’s estate if there was no will and no executor?

Even though your parent did not leave a will or name an executor, any surviving spouse or family member can apply to administer your parent’s estate and be appointed executor. Immediate family members are typically appointed executor over others that may make a petition. Since your parent passed without a will (intestate) the assets of his estate will be given out according to you the state’s laws. Probate assets will only include things that are titled in the deceased’s name only. Items that he held jointly will not be a probate asset. Items that are transfer on death (TOD) will also be a non-probate asset.

In Alabama, if a step parent died without any assets in their name. My children and I are the only heirs. I was named as the executor in their will. Do I have to probate the will if there are no probate assets?

If your step parent held non-probate assets such as joint accounts or insurance policies that named beneficiaries and there was truly no assets left in their name when she passed, then probate is not necessary.

Knowing correct information and having a good understanding about probate assets can help when dealing with circumstances involving the probate process. Experts can help answer what non-probate assets are or how to receive the probate assets from an estate. Get the answers fast and affordably by asking an Expert.

Ask an Estate Lawyer

Thomas McJD
Thomas McJD, Attorney
Category: General
Satisfied Customers: 3170
Experience:  Wills, Trusts, Probate & other Estate Matters
19305272
Type Your Estate Law Question Here...
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7 Estate Lawyers are Online Now

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Recent Probate Assets Questions

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    Do I have to leave a certain percentage of my SEP-IRA to my spouse or can I equally divide it among he and my children. I live in New York state.
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    I had to file a motion to obtain a court order to get an accounting of my father's estate from the executor (my brother). Once he received the order he was very slow to retain a lawyer and he is now technically in comtempt of court as he has not submitted his accounts. He lives in the US so he is out of our jurisdiction. He seems to have an aggressive lawyer. The lawyer wants to settle without a formal passing of accounts. My instincts told me "no" but it seems whatever the lawyers advise prevails. As I predicted, they have submitted a marginally more detailed accounting (had I known I would have foregone the order). Regardless, once again they have managed to ignore the extra info requested by my lawyer; tax returns, notice of assessments, non probate assets and powers of attorney in place before my father died. I'm in a tissy because my lawyer is going on holidays for 3 weeks and they have extended their initial offer until Monday. After that the agreement "amends" to say that all the executor's legal fees will be paid out of the estate and the compensation will be 5%. They have already amended their accounting accordingly. My brother, effectively ignored my lawyers requests from last Nov. I have a court order and somehow he manages to be in the driver's seat. What about my legal fees? Can't I get something back? As my lawyer pointed out we wouldn't be here if he had complied with her request last Nov. And why am I being forced to make a decision on the weekend without the benefit of my lawyer. She told me to decide what to do and call her on her cell. She likely hasn't even looked at the information we received. I wanted to proceed with a passing of accounts. I understand the courts have a Tariff for fees. My brother wants the full 5% fee (he doesn't even deduct what he inherited). The entire estate property is basically one investment. How simple is that? I don't expect I should have to negotiate for what accounting I receive but they have been withholding. That's exactly where we are at, just as I predicted. I said why hound these people for specifics wrt accounts when we have a court order that covers everything. I'm a lowly beneficiary who was led down the court order path only to have my lawyer recommend against following through. I don't like the way this lawyer negotiates. Agree by Monday or the newly amended agreement will take effect. I thought typically a judge decides on compensation and who gets what in the way of legal fees. I'm of the impression the executor has the advantage but we wouldn't be doing a passing of accounts if he had complied with my lawyer's simpler requests for info.

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