A probate estate is all the assets a person owns at his or her death that are subject to probate administration. Probate administration is the process of proving to a probate court that the will is genuine.
The following types of assets comprise a probate estate:
All assets held in the decedent’s (deceased person’s) name alone.
All assets the decedent owned as a tenant in common with one or more other persons. A tenant in common holds property together with other tenants in common. However, none of the tenants automatically inherit the shares of a tenant who dies. Each tenant holds an equal share of the property unless the property title specifies otherwise. When the decedent dies, his or her share becomes subject to probate.
All assets payable to the estate either because the estate is the designated beneficiary or the asset has no designated beneficiary. Examples include life insurance on the deceased and employee benefits.
Amounts owed to the decedent before death but paid after death. Examples include the decedent’s last paycheck, and other amounts due to the decedent’s estate by reason of his or her death, such as an award from a wrongful death lawsuit.
Household items, jewelry, and other items that don’t usually have title (unless the decedent has, in writing, declared them to belong to his or her revocable trust during life).
If an asset is in the decedent’s name alone for convenience only, but really belongs to another individual (for instance, if he or she was holding it for a relative who is incapacitated), the person claiming ownership of the property must furnish proof that it actually belongs to him or her. The asset then goes to the actual owner instead of becoming part of the decedent’s estate for administration or estate tax purposes.
Consider the following example. Mary is listed as the only signer on her disabled daughter Sue’s checking account, which is funded solely by Sue’s monthly disability payments. If Mary dies, Sue must provide documentation that the account and the money in it actually belong to Sue and not Mary.
This proof may be in the form of a letter between Sue and Mary mentioning the arrangement, check stubs from the disability payments, or even bank statements showing that all deposits into the account were for Sue, and all payments out were for Sue’s benefit. After that documentation is in order, you have the proof you need to exclude this particular bank account from Mary’s estate, both for probate and tax purposes.
Most assets that are subject to probate administration come under the supervision of the probate court in the place where the decedent lived at death. The exception is real estate. You must probate real estate in the county in which it’s located. If the estate has real estate in another jurisdiction, you must have ancillary administration (separate probate of the property in the jurisdiction where it’s located), in addition to probate in the decedent’s state of residence.
