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What is a Probate Property?

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  • Written By: Daphne Mallory
  • Edited By: Melissa Wiley
  • Last Modified Date: 06 November 2016
  • Copyright Protected:
    2003-2016
    Conjecture Corporation
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Probate property is real and personal property owned by the decedent’s estate and that is subject to probate proceedings. The purpose of requiring certain property to go to probate is to legally transfer it from the decedent’s name to the beneficiaries. Not all property owned by the decedent is probate property because the legal transfer takes place automatically. Some jurisdictions may also exclude property that is worth less than an amount specified in its probate laws or because of the nature of the ownership between the decedent and an heir. Property held in a trust does not belong to the decedent at the time of death and is often not classified as probate property.

When a person dies, the heirs or beneficiaries often have to initiate probate proceedings to transfer title to real estate and transfer ownership of other types of property. An intestate probate proceeding occurs when the person dies with no will or without a valid will, and the judge must distribute property according to local laws. Where there is a will, then the property is often distributed in accordance with the decedent’s wishes. The property that is the subject of the proceedings is probate property. Some jurisdictions require payment of a probate tax before granting rights to an executor or administrator, based on the value of the probate property.

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Some property is not subject to probate, and as a result individuals often utilize various legal methods prior to death to avoid probate. One of the most popular ways for individuals to avoid probate is to put all or most of the property into a trust. The trustee is deemed the owner of the property, and not the decedent. Ownership of property jointly is another method often used to avoid probate proceedings. The property often transfers to the surviving spouse or other heir without probate by right of survivorship or as a co-tenant owning the property its entirety.

Personal property, proceeds, and other intangible assets may not be subject to probate. For example, life insurance proceedings are not often considered probate property because they are paid to a named beneficiary upon the insured’s death. Non-resident decedents may own property, bank accounts, and other intangible assets in other jurisdictions. A probate court often will not include the property in that case as probate property. Resident decedents may own property in other jurisdictions, and it is often considered probate property.

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