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What assets are not included in probate? Does the IRS have any of these assets if not who would?

San Francisco, CA |

How to get the asset information that did not go thru probate? Thnx~

Attorney Answers 3

Posted

Assets that are not included in a probate include assets held in a revocable trust, assets that pass by beneficiary designation (life insurance/retirement plans, etc), and assets held in joint tenancy with right of survivorship or other pay on death on death form.

The IRS won't have possession of these assets. For real property, you can check the county records to see how title is held.

You really need to meet with an attorney who can provide more specific advice to you based on your particular facts and what you are seeking to accomplish. That is not clear from your question.

DISCLAIMER: THE INFORMATION PRESENTED HERE IS GENERAL IN NATURE. IT IS NOT INTENDED, NOR SHOULD IT BE CONSTRUED, AS LEGAL ADVICE. THIS RESPONSE DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP BETWEEN US. YOU SHOULD CONSULT WITH A QUALIFIED ATTORNEY FOR SPECIFIC LEGAL ADVICE ABOUT YOUR PARTICULAR SITUATION.

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Asker

Posted

For ALL these assets if there's ex stepson of my fathers involved in the probate & stepped in for our Dad as Attorney @ law, he told my Dads funeral director that my Dad had no kids, knowing darn well he did have, 3 daughters! Could it or should it of ALL gone to him?

Asker

Posted

Could you please explain to me so I can understand how this works?

Mary Lynn Symons

Mary Lynn Symons

Posted

As I indicated in your other posting, you need to see an attorney to review the documents. That attorney can advise you as to the ex-stepson's claims, etc. What a funeral director is told has no effect on a probate.

Posted

Attorney Symons has given you a good answer. Aside from assets that are part of the public record, like real estate, it is going to be next to impossible for you to determine what passed outside of probate. You will not be able to get information from banks and other financial institutions, outside of a lawsuit setting. Privacy laws prevent companies from divulging information on assets passing outside probate. The same thing is true with a trust, unless you are one of the beneficiaries.

James Frederick

***Please be sure to mark if you find the answer "helpful" or a "best" answer. Thank you! I hope this helps. ***************************************** LEGAL DISCLAIMER I am licensed to practice law in the State of Michigan and have offices in Wayne and Ingham Counties. My practice is focused in the areas of estate planning and probate administration. I am ethically required to state that the above answer does not create an attorney/client relationship. These responses should be considered general legal education and are intended to provide general information about the question asked. Frequently, the question does not include important facts that, if known, could significantly change the answer. Information provided on this site should not be used as a substitute for competent legal advice from a licensed attorney that practices in your state. The law changes frequently and varies from state to state. If I refer to your state's laws, you should not rely on what I say; I just did a quick Internet search and found something that looked relevant that I hoped you would find helpful. You should verify and confirm any information provided with an attorney licensed in your state. I hope you our answer helpful!

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Asker

Posted

but what if the real estate was in the will/probate..?

James P. Frederick

James P. Frederick

Posted

A Will ONLY applies to assets that are part of the probate estate. If I leave a Will saying, "I leave my house to my son and do not wish my no-good horrible daughter to get anything," but the house is jointly owned with the daughter, then the daughter gets the house. The Will would not apply.

Mary Lynn Symons

Mary Lynn Symons

Posted

Mr. Frederick's example shows exactly why you need to speak to an attorney who can review the documents and who understands all of the facts.

Asker

Posted

What if it says my house to be included in my estate on the probate documents?

James P. Frederick

James P. Frederick

Posted

Title still trumps the Will. It is not HIS house, under your scenario. He can only leave the assets that are his (alone) to leave. Having said that, if you can PROVE that there was a "mistake" and that the deceased did not understand the effect of the documents...you might have a toe inside the doorway.

Asker

Posted

21112. A condition in a transfer of a present or future interest that refers to a person's death "with" or "without" issue, or to a person's "having" or "leaving" issue or no issue, or a condition based on words of similar import, is construed to refer to that person's being dead at the time the transfer takes effect in enjoyment and to that person either having or not having, as the case may be, issue who are alive at the time of enjoyment. WHAT DOES THIS MEAN?

James P. Frederick

James P. Frederick

Posted

I am not quite sure, since it is taken out of context. It appears to be a definition of something. What the effect of such a clause is is the key point. What is the effect of including such a condition?

Mary Lynn Symons

Mary Lynn Symons

Posted

It means what I mentioned in your other post. When the bequest is to "my then living children" or "the then living children of John Smith," then assuming the bequest is to take effect on the testator/trustor's death, then it is to the testator/trustor's children who are living when the testator/trustor dies (or John Smith's children living on that date). If it is the residue of a trust that was set up for a beneficiary, then it is those individuals living when the trust terminates. Please see an attorney to have the document reviewed to provide you with advice that is specific to your facts.

Posted

As noted by Ms. Symons' answers, it appears you are trying to uncover details about a probate matter and that you are either a beneficiary or contingent beneficiary that believes has an interest in the estate. It is commendable that you are seeking answers in the probate code and online through AVVO but it is extremely advisable that you consult with an attorney that is experienced in the area and discuss the details of your particular matter so that you do not discover what you should or could have done when it is too late to do anything about it.

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