When you die, your personal property is passed on to your family members and loved ones according to your will and other estate planning documents (if you have them) or according to your state’s intestacy laws (if you die without a will).
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A deceased person’s estate consists of all the real and personal property they own at the time of death. Real property includes land and real estate, such as the family farm and the barn built on the farm. Personal property includes personal belongings such as jewelry and vehicles, as well as financial accounts and investments such as your bank account or 401(k). This article explains the different ways your personal property may be distributed upon your death depending on how your estate plan is (or is not) set up.
What Happens to Your Probate Assets?
The distribution of a person’s assets depends on whether they are probate or non-probate assets. Probate is the court-supervised process of settling your estate and distributing your assets after your death. While everyone’s estate consists of different types of property, most people have both probate and non-probate assets they want to pass on after their death.
Probate assets are the assets you hold in your name only, without any beneficiary designations or rights of survivorship. Your probate assets must go through the probate process before they are distributed to your family members and loved ones. The transfer of your assets during the probate process depends on whether you die with a valid will or intestate (without a will).
When There Is a Will
A last will and testament is the core of your estate plan. It is the legal document that lets you appoint an executor (or personal representative in some states) to oversee the distribution of your estate, choose a guardian for your minor children, and name beneficiaries you want to receive your property when you die.
If you die having made a will, the probate court will distribute your probate assets according to the terms of your will. For example, if your will names your grandson as the beneficiary of your watch collection and your niece as the beneficiary of your vehicle, the state will honor these wishes and distribute your property accordingly.
When There Isn’t a Will
If you die without a will, the probate court will distribute your property according to your state’s intestate succession laws. Each state has its own intestate process for determining which heirs will receive a share of a decedent’s estate. Generally, the surviving spouse inherits a share of the deceased spouse’s estate first, followed by children, grandchildren, parents, and siblings. If you have children but do not have a surviving spouse, your children typically inherit your estate in equal shares.
If you’re married, the process also varies depending on whether you live in a community property state or a separate property state. In a community property state, your surviving spouse will inherit all of your joint community property (also called “marital” property) automatically when you die. In a separate property state, your surviving spouse will inherit your entire estate if you have children together. If you have children from another partner, your estate is generally split between your surviving spouse and your children from another partner. Note that some states (but not all) treat domestic partners the same as spouses for intestate succession purposes.
Dying without a will often leads to a long, burdensome probate process for your grieving loved ones, and state laws for property distribution likely aren’t in line with your final wishes. To maintain control over what happens to your probate assets after your death, you must make a will.
For a simple and inexpensive solution, you can use FindLaw’s state-specific last will and testament form to draft your will from the comfort of your home. The fully customizable template and step-by-step instructions allow you to designate beneficiaries (and backup beneficiaries) for your personal property to ensure that your belongings don’t fall into the wrong hands after your death.
What Happens to Your Non-Probate Assets?
As the name implies, non-probate assets bypass the probate process and pass directly to another individual upon the owner’s death. Non-probate assets include assets with a beneficiary designation and assets held as joint tenants with rights of survivorship.
Assets With Designated Beneficiaries
Some assets allow you to have designated beneficiaries. Examples include life insurance policies, retirement accounts, 401(k)s, and funds in a payable-on-death (POD) bank account. Your will does not control any assets that have beneficiary designations. Instead, these assets are paid directly to the named beneficiary when you die without going to probate court.
Joint Ownership With Right of Survivorship
Bank accounts and other assets held in joint ownership with right of survivorship pass outside of probate. When one owner dies, the surviving owners automatically inherit the deceased owner’s share by operation of law.
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Need Help Drafting Your Will?
Drafting a will instructing the probate court on how you want your assets handled after your death doesn’t have to be complicated or expensive. Our do-it-yourself estate planning tools and forms simplify the process with step-by-step instructions for creating a last will and testament customized to your needs and preferences.
If you still have questions about drafting a will, seek legal advice from an estate planning attorney in your area.
