Probate vs Probate Assets In Georgia

Melissa Breyer, Esq.
Last Updated: June 7, 2024

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Probate vs non-probate assets determine what has to go through probate.

You’ll learn about:

what assets require probate
what makes assets “non-probate”
how to set your property up to avoid probate

Let’s dig in.

Probate vs Probate Assets

Let’s talk about what these are:

Probate Assets: Assets that have to go through probate to transfer to your heirs.
Non-Probate Assets: Assets that can bypass probate to transfer to your heirs.

Probate vs non-probate assets depends on:

the title of the property
beneficiary designations

Asset Type	Probate Asset	Non-Probate Asset
Real Estate	Sole ownership, tenant in common	Joint tenancy, Transfer on Death Deed
Personal Property	Solely owned items, personal collectibles	Jointly owned, designated beneficiaries
Bank & Investment Accounts	Individual accounts without POD/TOD	Accounts with POD/TOD, joint accounts
Insurance & Retirement Accounts	Policies/accounts without named beneficiaries	Policies/accounts with named beneficiaries
Vehicles	Solely owned vehicles	Vehicles owned jointly or with a transfer on death title
Business Interests	Solely owned or without continuity provisions	Ownership with buy-sell agreements or in continuity-based entities
Trust Assets	--	Assets held in a living trust
Digital Assets & Safety Deposit Boxes	Lacking clear beneficiary designations	With beneficiary designations or in a digital plan

Types of Probate Assets

Probate assets are those that were held solely in the deceased’s name.

You’ll need the probate process to transfer ownership.

Common situations are:

Real Estate: Property solely in the decedent’s name or as a tenant in common.
Personal Property: Vehicles, jewelry, and other personal items.
Bank Accounts: Accounts solely in the decedent’s name without a designated beneficiary.
Investments: Stocks and bonds held in the deceased’s name alone.

Types of Non-Probate Assets

Assets exempt from probate are those that:

are held jointly with automatic transfers upon death
have payable (POD) or transfer on death (TOD) designations
have designated beneficiaries

These assets will avoid probate in Georgia.

The property does not need probate to transfer ownership.

Examples of non-probate assets are:

Jointly-Owned Real Estate: Properties owned with rights of survivorship or designated to transfer directly via a deed.
Designated Personal Property: Items like vehicles or jewelry with named beneficiaries.
POD Financial Accounts: Bank or brokerage accounts that immediately transfer to a beneficiary upon death.
TOD Investments: Securities that are directly assigned to a beneficiary.
Retirement Accounts: IRAs, 401(k)s, and pensions with specified beneficiaries.
Life Insurance: Policies with direct beneficiary payouts.
Trust Assets: Property controlled by trusts, bypassing probate.
Business Succession Interests: Business stakes pre-arranged to transfer to designated successors.

Key Differences Between Probate and Probate Assets

Let’s look at how these are handled differently.

Aspect	Probate Assets	Non-Probate Assets
Court Supervision	Overseen by courts	No court involvement
Administration	Managed by an appointed individual	Automatic transfer to a beneficiary
Public Record	Publicly accessible	Private and confidential
Creditors	Creditors can claim against the estate	Creditors cannot claim
Timeframe	Longer due to the court process	Quick transfer
Cost	Involves court and attorney fees	Generally lower costs
Flexibility	Changes require legal proceedings	Easier to change designations

Probate Assets

Court Supervision: Probate asset distribution is overseen by the courts.
Administration: Someone is appointed to manage the estate, pay debts, and distribute these assets.
Public Record: Probate is public record, so anyone can see what you’re inheriting or passing down.

Non-Probate Assets

No Court Process: They pass directly to the beneficiary without court involvement.
Automatic Transfer: They automatically pass to the beneficiary without probate.
Creditors: Creditors cannot access these properties for probate repayment.
Privacy: Since it’s not a public record, there is more confidentiality.

How To Avoid Probate

There are several tools to let assets avoid probate:

Joint Ownership: JTWROS automatically passes property to surviving owners.
Living Trust: The trust owns the assets, which do not go through probate.
Beneficiary Designations: Assets will automatically transfer upon your death.
POD and TOD Designations: Assets will automatically transfer upon your death.

These tools turn probate assets into “non-probate assets.”

Fill out the form to have us set up your estate to avoid probate.

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