Legal Definitions - nonprobate assets

In trusts and estates, non-probate assets are assets that are transferred outside of the probate process. This means that the ownership of these assets changes without going through the court system. Non-probate assets can include:

• Inter vivos gifts
• Tenancy by entirety
• Joint tenancy with right of survivorship
• Trusts

Inter vivos gifts are gifts that are given during a person's lifetime. Tenancy by entirety is a type of joint ownership that is only available to married couples. Joint tenancy with right of survivorship means that when one owner dies, the other owner automatically inherits the property. Trusts are legal arrangements in which a trustee manages assets for the benefit of a beneficiary.

These examples illustrate the definition of nonprobate assets because they all involve a transfer of ownership that occurs outside of the probate process. For example, if a person creates a trust and transfers their assets into the trust, those assets will be managed by the trustee and will not go through probate when the person dies. Similarly, if a married couple owns property as tenants by entirety, the surviving spouse will automatically inherit the property when the other spouse dies, without the need for probate.

It's important to note that the inclusion of nonprobate assets in the calculation of the elective share (a mechanism that allows a surviving spouse to choose between an elective share calculation or under the decedent’s will) varies by jurisdiction.