You know it is funny, before I went to law school I was mystified and impressed by attorneys’ using legalese. While I was in law school, it infuriated me, and I swore I would make every effort possible to avoid using legalese when interacting with clients. Now that I’m an attorney and actually interacting with clients, I find myself using legalese because that is how I was required to explain the law during law school exams. Thankfully, when I get a good head of steam going and unknowling start rambling in lawyer speak, my clients are comfortable enough to stop me and ask for clarifications.
Lately, I’ve explained the difference between “probate assets” and “non-probate assets” atleast a dozen times. Since it is such a common question, I thought it might be for the good of the order to go ahead and ink a short explanation by way of a short, and, hopefully, illustrative story:
David Decedent made a Last Will and Testament in 2001. David just passed away in his sleep at the ripe old age of 99, having seen multiple generations grow up, having seen the entire world, and having experienced every one of his hopes and dreams. David did quite well in life. He owned lots of things: furniture, clothes, TVs, a car (though he rarely drove it), and jewelry. This property is referred to as “tangible personal property.” David also owned his home and a 15 acre tract of land where David wanted to build a house, but never got around to it. The land and real estate is referred to as “real property.” In addition to his things and land, David had life insurance policies and several bank accounts. These policies and accounts are referred to as “intangible personal property.”
When David passed away, the personal property and real property were titled in his name. The title to the car and real estate said the owner was “David Decedent.” No one disputed David owned his other belongings. This property, property still titled in the decedent’s name after his or her death, is referred to as a “probate asset.”
When attorneys talk about “probate” or needing to “probate a will”, what we are referring to is submitting documents to the Probate Court so that good and marketable title to the property can transfer to the new owner. Any property that is held in the name of the decedent after the decedent’s death, will have to be probated for the new owner to acquire good title. So in David’s case, his house, car and other property in his name will become “probate assets.”
The intangible personal property – the bank accounts and insurance policies — these items are generally “non-probate assets” because they generally have named beneficiaries. Upon David’s death, provided a beneficiary was named, the title to those policies and accounts automatically transfered to the beneficiary, thus the probate court was not needed to transfer title. Had David failed to name a beneficiary, the account would become a probate asset.
With the assistance of an experienced attorney, navigating the probate process is generally inexpensive and quick. Generally, probate will only take as long as it takes to transfer the property held in the decedent’s name. So, if for example, you are selling a house, probate administration will continue until the house sells. Though the actual administration may take a long time, fear not, this does not mean your legal fees will continue to climb out of control!