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Posted on Thursday, September 8th, 2016 by Peter Klenk

From Our “Ask a Question” mailbag: Life Insurance is a Non-Probate Asset, Unaffected by You Will:  

“My sister went to jail, so mother changed her Will and gave me the entire estate.  She forgot to remove my sister from her life insurance.  Now I hear life insurance is a Non-Probate Asset. Who gets the life insurance?”

Mugshot of young women in jail; Because Life Insurance is a Non-Probate Asset, even though her mother disinherited her from her Will. She forgot to change her Life Insurance that listed jailed daughter a beneficiary, so daughter still gets the death benefit.Your mother’s will can give you the entire “probate” estate.  But, the will has no effect on the “non-probate” property.  Let me explain.

Life Insurance typically names a beneficiary. A beneficiary is a person who is appointed by the policy owner to receive the death benefit when the insured dies. The policy owner can change this beneficiary designation at any time. The beneficiary designation is part of the life insurance policy and is unaffected by the policy holder’s Will.  When the insured dies, the beneficiary can then collect the life insurance proceeds even if there is no Will.

The Will Controls Probate Assets.  Life Insurance is a Non-Probate Asset.

The Will determines ownership of all assets owned by a deceased without beneficiary designations. These assets are called “probate” assets. Real estate, cars, and investment accounts are typically probate assets.

In your case, it sounds like your mother failed to change the beneficiary designation on her life insurance. She was the policy owner.  She could have done this at any time. The Will may give you all her probate assets but will have no effect on the life insurance.

Your sister is entitled to the life insurance even if she is in jail. Collecting the insurance might prove difficult for her, but that is not your concern.

Taxes are another consideration. Your mother’s estate could be subject to death taxes, such as an Inheritance or Estate Taxes. If so, as executor you need to determine who is responsible for the tax due on the life insurance. It is possible that you will have to pay taxes on the life insurance out of your portion of the estate.

As executor, you can retain an experienced probate lawyer to give you advice. If you need help on only a single item, rather than help on the entire estate, feel free to retain us. We are happy to help with as little or as much as you need.

If you have further questions about probate or any other Estate Planning questions, feel free to Contact our office for a free consultation.

Wills, Trusts, Probate, and Estate Litigation it’s all we do!

Peter Klenk, Esq.

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