Why It’s Important to Know Which Assets Are Subject to Probate

Articles / Why It’s Important to Know Which Assets Are Subject to Probate

Probate is the process where a court oversees the property management of a deceased person to ensure that all their debts are paid and that their remaining properties are transferred to the appropriate parties. In some cases, probate is required regardless of whether the deceased has left a will. That said, not all of a decedent’s assets are subject to probate. Brook Legal explains how you can differentiate the two and why it’s important to know the difference:

Probate and Non-Probate Assets

While probate lawyers in Perth would enlighten you on which assets are subject to probate and which are not, knowing these beforehand will allow you to plan your assets properly.

Probate assets are those that you own in your own right, and that is subject to the probate process. This often includes liquid assets such as savings, checking or other bank accounts that are in your name as well as vehicles, furnishings for your home, jewellery, or other personal items. Any land or real estate property that you own or share ownership with through a tenancy in common is also under probate properties. There are also personal items that do not have title documents like clothing, appliances and household goods. These are subject to probate too and would need to be listed on the inventory that you file with the probate court.

In case your assets require probate court proceedings, it will be the executor’s responsibility to open the case in court and shepherd it to its conclusion. If you did not name an executor, the probate court could appoint someone to serve instead.

Non-probate assets, on the other hand, do not need to pass the probate process before being distributed. These assets can be immediately distributed to named beneficiaries. There are usually three types of non-probate assets. The first is a property that’s held jointly with survivorship rights, wherein if one owner dies, the title is automatically passed on to the remaining owner. Another is a property with a designated beneficiary, such as life insurance. Lastly, trust properties or those owned by a living trust, regardless of whether they are revocable or irrevocable, do not need to be probated.

Why the Distinction is Important

The question of probate and non-probate assets becomes important during estate planning. Knowing which properties you have control over, and which you do not, allows you to ensure that any property you own or jointly own with your spouse will be distributed to your exact specifications. Since the dispersal of non-probate properties isn’t dictated by your will, it’s important to review your assets and discuss them in detail with your estate planning attorney.

While categorising your assets into probate and non-probate may seem simple, doing so without consulting your estate planning attorney can result in serious problems. The incorrect titling of your assets, for instance, can lead to huge losses in tax benefits. When seeking a grant of probate application in WA, be sure to work with a professional like Brook Legal. We have a team of experts that specialise in probate in Perth, WA. Schedule an appointment today.

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