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Probate v. Non-Probate Assets


It should be pointed out that a Will in some cases is not determinative of the disposition of all or even most of the assets of an estate. A Will only controls the disposition of what are termed “probate assets.” “Probate assets” can be generally defined as the property that the client owns solely in his or her own name.

Assets which are disposed of through the designation of a beneficiary such as IRAs, 401ks, qualified retirement plans, annuities and life insurance do not fall within the definition of probate property. Unsurprisingly, these assets are termed “non-probate property.” Probate property also does not include property that the client owns jointly with the right of survivorship another party. 


Joint property does not pass according to the terms of a will but will pass to the surviving joint owner automatically upon death by operation of law. In most cases joint property will be designated as such with the names of the owners and the phrase following their names “Joint Tenants with Right of Survivorship”, or “JTWROS”. Joint property which passes by right of survivorship should be distinguished from property held by two or more owners as “tenants in common.”  If the property is held by a husband and wife, the property is presumed to be held jointly with the right of survivorship even without that joint designation (i.e., “joint with right of survivorship” or “JTWOS”). If the property is held by joint owners other than husband and wife without the right of survivorship designation, the property is presumed to be held as “tenants in common”. Property held as tenants in common is deemed to be owned by one-half by each owner and will pass as a probate asset under their respective Wills or by Intestacy.


Finally, if you have named a beneficiary of an investment account or added a co-signatory to a bank account, your Will does not control the disposition of those accounts. Instead, the account will pass either in whole or in part to the named beneficiary or co-signatory. Finally, property that has been placed in Trust is not probate property. Such property will be disposed of by the terms of the Trust and not your Will.

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