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Does all property go through probate?

Not all property go through probate. Assets that are part of a person's "non-probate estate" can be distributed outside the probate process. Life insurance or retirement benefits such as IRA's Keoghs, and 401(k) accounts transfer automatically to the beneficiaries. Bank accounts that have named beneficiaries and are set up as pay-on-death accounts (PODs) or "in trust for" accounts ("Totten Trust") also pass to the beneficiary without probate. Properties held in a joint tenancy, community property or in a living trust also passes to the beneficiaries without probate.

Other assets may not need to go through probate, either. In California, if the total value of the probate estate (assets that are subject to the authority of the probate court) is less than $150,000, beneficiaries can claim the assets with a simple sworn statement (affidavit) or use the state's "simplified procedures" for transferring property.

The probate estate, on the other hand, consists of all types of property, both real and personal, that make up a person's estate. Tangible and intangible personal property, such as collectibles and stocks are probated in the state where one lives. Real estate property, on the other hand, is probated where the property is located. Thus, if a person has real property in California and New York, then there will be two probates.

*This blog entry was not written by an Attorney and should not be construed as professional legal advice.

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