Probate and Non-Probate Assets

Some of the most common questions we receive pertain to avoiding probate. The type of assets you own at the time of your death will determine whether probate may be avoided.

In simple terms, an asset is subject to probate if it is solely owned by the individual who passed away (the decedent). If an asset is solely owned by the decedent, then to transfer the asset to someone else, the decedent’s Executor needs to open probate to verify the decedent’s Will and effectuate the transfer from the name of the decedent to the intended beneficiary.

If you have a Will, you may designate how and/or to whom you’d like your assets to be distributed. If you don’t have a Will, the transfer of your assets will be determined by Georgia’s laws of intestacy. Having a Will in place generally facilitates a quick and smooth probate process.

Assets that you own jointly, such as a home jointly owned by a husband and wife, are generally not subject to probate because the asset will automatically transfer to the remaining joint owner. The same can be said for jointly owned bank accounts.

Assets that allow you to designate a beneficiary, such as IRAs or 401ks, are not subject to probate because beneficiary designations govern where the asset goes when the individual passes away. As long as make your designations, the custodian of these accounts will automatically follow your instruction. It is very important to double-check that any assets you own with the ability to designate a beneficiary are up to date. Particularly if you undergo a major life event, such as a divorce, updating your designated beneficiaries is key to ensuring your assets flow to your desired recipient.

In very simple terms, anything you own solely in your name may be subject to probate. One aspect of estate planning is taking a look at your assets and considering what plans to make to avoid or prepare for probate. We are here to help with that! Feel free to give us a call at 678-325-0345.