Assets which pass by Title, not Will

 Assets which pass by Title, not Will

A Will cannot change who receives assets if a beneficiary is already listed or property owned by Tenancy by Entirety or Joint tenancy.

 

House- husband and wife is owned by Tenancy by Entirety, the house goes to surviving spouse

 

Bank Accounts- If POD, JT property goes to surviving person

 

    Assets which pass by Contract

IRA- property goes to whoever is listed as beneficiary

401K- property goes to whoever is listed as beneficiary

Life insurance - property goes to whoever is listed as beneficiary

Annuity- property goes to whoever is listed as beneficiary

Pension plans- property goes to whoever is listed as beneficiary

-other items which set forth a beneficiary

 

 

      The Bergen Surrogate provided helpful information to citizens:

 

What are Probate Assets and What are Not

Not all assets must go through probate to be transferred to a beneficiary. Some assets pass automatically (by operation of law) to other persons (beneficiaries) without the need for probate. Whether a particular asset to be transferred must go through probate or not depends on how ownership (title) to the asset is held.

If Title to an Asset is Held in the Testator’s Name Alone

Real estate and personal property, such as bank accounts, stocks, bonds, motor vehicles, etc. held in the testator’s name alone, and monies owed to the testator, are “probate property” which are transferred in accordance with the testator’s Last Will & Testament. These assets cannot generally be transferred without going through the probate process. However, some brokerage firms provide beneficiary designation forms which may transfer these accounts without probate.

If Title to an Asset is Held by the Testator Jointly with a Right of Survivorship

Assets held by the testator and another person jointly, with a right of survivorship, are said to be held as “Joint Tenants with Right of Survivorship” (JTWROS); and pass by operation of law at the testator’s death to the surviving joint tenant. Bank accounts, securities and real estate are often held in joint tenancy. Assets that are titled this way are not subject to probate. The name on the bank or securities account application and the deed for real estate may read: “John Smith and Jane Doe, as Joint Tenants with Right of Survivorship.” Be careful changing title to existing assets because there can be tax and other consequences.

If an Asset Provides for a Beneficiary Designation

“Beneficiary designation property” is generally non-probate property which passes in accordance with beneficiary designations assigned by the testator. Life insurance proceeds, 401(k) plans, IRA’s, employee death benefits (e.g., pension, profit-sharing, etc.) and accounts titled “Payable on Death” (POD) and/or “In Trust For” (ITF) are typical beneficiary designation property. Generally, the insurance company, pension plan administrator, or employer will have the beneficiary’s name in their records, or a copy of a form signed by the owner of the property indicating the beneficiaries. Language in the policy or plan may also be important.