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Non Probate Property


Not all property must be probated. Property titled in the name of a Trust does not usually require probate. The title to certain other types of property will transfer at death automatically. Real property owned as joint tenants with rights of survivorship (“JTROS”), (known as “tenants by the entirety” between married persons) will automatically be owned by the survivor on the death of a joint tenant.

Bank accounts in the name of two or more persons as joint tenants with rights of survivorship will pass to the survivor automatically.  Such property does not need to be probated. Accordingly you must be very careful whose name you put on your bank accounts. It will pass strictly by title even though your will or trust may direct a different result. It is very important that the attorney preparing your estate documents review the title to all of your property to be certain your actual wishes will be followed. 

Another way in which property passes outside of probate is through payable on death beneficiary designations. These are considered contractual and will override the provisions of your will or trust.  Payable on death beneficiary designations for bank accounts, retirement accounts and life insurance policies will be passed on to the designated beneficiaries without probate on death. 

It is important however to know that non-probatable property is still counted as part of your gross estate for estate tax purposes. Even though the property may pass outside of court, when you file your estate tax return, it must be listed as part of your gross estate for calculating state or federal estate tax liability. 

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