People often think of a will as the ultimate set of instructions, the document that says what happens to their stuff when they die. But that’s not actually true. In most cases, only some of the assets pass according to the will; the rest passes in other ways.
So what of your assets will pass according to your will? To understand that, you first have to understand what the probate process is and the difference between probate and nonprobate assets. The term “probate” refers generically to the administration of an estate under the oversight of the Probate and Family Court (that’s what the court is called in Massachusetts; elsewhere the relevant court will have a different name, like the Surrogate’s Court in New York). In addition to the practical matters of marshaling assets, paying debts, and making distributions, the personal representative (known in some other states as the executor or administrator) attends to court-related obligations, including providing notice to the appropriate persons, filing the probate inventory, and filing at least one probate account. This process can be complex, time-consuming, and expensive, which is why you may have heard of the concept of “avoiding probate.”
This process is required, however, only with respect to one’s probate assets. Think of probate assets as those that are not non-probate assets (sounds a bit convoluted, I know, but stay with me). Non-probate assets are those that pass by operation of law and that, accordingly, are not subject to the probate process. Property held jointly with another is non-probate property because each owner has a right of survivorship; when one owner dies the other owner automatically owns the whole thing. Property for which there is a named beneficiary, such as a retirement account or life insurance, pass automatically to the named beneficiary. The same is true for other accounts (e.g., bank or brokerage accounts) for which there is a transfer-on-death designee instead of a designated beneficiary. Assets held in trust are also non-probate assets. They pass (or stay in trust and are managed) according to the terms of the trust and apart from the probate process.
So those are your non-probate assets. Everything else, i.e., assets that you alone own at your death and that are not subject to a beneficiary or transfer-on-death designation, are probate assets. There is no legal mechanism for the automatic passing of those assets, so they must be disposed of pursuant to the probate process. And your will (finally!) is the set of instructions for where those assets go.
So find out which of your assets will pass according to your will and which of them will pass in other ways. Only with that knowledge can you take the proper steps to ensure that your assets will actually go where you want them to after you’re gone.
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