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Non-Probate Assets Do NOT Pass Through Your Will And Could Cause Big Problems

Having a will does not necessarily mean that all of your assets will get divided per the terms of your will. Assets that pass according to the terms of your will are called probate assets, and assets that do not pass through your will are called non-probate assets. You need to keep this in mind when creating your will in particular and you estate plan in general. Otherwise your total assets could be distributed much differently than you would have wanted.

Some assets only pass per the terms of a beneficiary designation form. Examples of these kinds of assets are things like IRA’s, 401(k)’s, and life insurance. If you have any of these kinds of assets then you need to complete the beneficiary designation forms for Non-probate assets need to be addressed.them in a way that is coordinated with the estate planning done with your will. An attorney can help you with this.

Another category of non-probate assets includes “multi-party arrangements” for financial accounts such as checking accounts, savings accounts and investment accounts. Depending on the size of the account, multi-party arrangements should generally be avoided whenever possible if you want to maximize the benefits of having a will. One sub-category of these is survivorship accounts. These may have wording such as “Joint Tenants With Right Of Survivorship”, “Community Property With Right Of Survivorship” or “Joint Tenants”. Another Sub-category includes “Pay On Death” (“POD”) or “Transfer On Death” (“TOD”) designations.  Oftentimes these kinds of non-probate accounts are referred to as a “Poor Man’s Will’. If someone has very few assets this may be ok, but for proper estate planning they should not be used. Again, an attorney can help you with these things.

Why ‘multi-party arrangements’ should be avoided.

Generally speaking, by using multi-party arrangements on your financial accounts you lose a lot of control of how you want your assets to be divided and used. This happens because you lose many of the advantages of your will for such things as tax planning, trust planning, contingency planning and creditor-protection planning that can be contained in a will. Below are just some examples.

One person may end up inheriting the entire account, even though that may not have been your true intention or desire for your overall estate. Perhaps you only have one person named as a beneficiary on the account, but in reality you want that account split between that person as well as others. And even if you have multiple people named as beneficiaries, if one or more of them were to die before you do then their heirs wouldn’t get any of those assets. This usually isn’t what people want to happen to their assets when they die.

If you create a testamentary trust in your will then that trust will not get funded as you had planned. First, the beneficiary of that trust may not get nearly as much of your total assets as you had wanted. Likewise, some of the benefits of having those assets in the trust would be lost, eg. keeping a child or young adult from spending their inheritance frivolously or protecting the inheritance from creditors. This could possibly even disqualify a beneficiary from receiving government benefits.

Your estate may not have enough assets for the Executor or Executrix of your will to pay your debts, income taxes, property taxes, funeral expenses, administration expenses, etc.

To ensure that all of your estate passes the way that you want, you need to check the wording on your different accounts and you need to change the wording when appropriate.

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