Identifying nonprobate assets can be a tricky issue that the executor or administrator must sort through.
The default rule in Georgia is that all assets are probate assets unless there is an exception.
As a result, the personal representative must understand what those exceptions are and how they work.
My name is Erik Broel & I am the founder & CEO of Georgia Probate Law Group.
At our firm we help families who have lost a loved one navigate the complex and confusing legal process so they can make sure the estate is handled properly and their loved one’s memory is honored.
Nonprobate assets are not considered assets of the estate. That means that the nonprobate assets are not governed by the probate court and are not managed by the personal representative.
As a result, the recipient of a nonprobate asset cannot be forced to use the nonprobate property to pay creditors of the estate. In addition, the nonprobate property is not subject to the terms of a will.
The rules on nonprobate assets have several key effects:
- Even if the estate has far more debt than assets, the nonprobate assets will not be affected.
- Nonprobate assets are protected from a year’s support claim, which is Georgia’s version of spousal support.
- Nonprobate assets go directly to the designated individual regardless of what the will may say.
An asset will usually be considered nonprobate property if it:
- Has a beneficiary designation.
- Has a pay on death designation, a transfer on death designation.
- If it is owned as joint property.
As a result, each asset will need to be investigated individually to determine if it meets the requirements to be considered nonprobate.
Examples of property that is usually (but not always) nonprobate are:
- Life insurance.
- Retirement accounts.
- Certificates of deposit.
- Jointly owned bank accounts.
- Jointly owned real estate.
Remember that if the title or beneficiary designation is not set up properly, then the asset will likely revert to being a probate asset and will be considered to be part of the estate.
I would caution you to investigate each asset and not make any assumptions – in our office, we have seen it go wrong too many times when clients have made assumptions without proper investigation.
Everything discussed in this article is for general information and is not legal advice.
If you are in a situation where you need help getting clear on what assets should or shouldn’t go through probate, I recommend you reach out to our office at (770) 920-6030 to set up a consultation.
If you’re not quite ready for a consultation, be sure to download our Georgia Probate Handbook so you know how the estate is supposed to be handled.