Probate Estate, Defined
The decedent’s “probate estate” is the part of a deceased person's estate that is governed by the provisions of the Uniform Probate Code. The probate estate requires a court probate proceeding to pass that part of the estate to the decedent’s heirs or devisees. The probate estate includes decedent’s property, both real and personal, that is titled in decedent’s sole name or as tenants in common (defined below). It does not generally include property held in joint tenancy (also defined below), insurance policies (unless the estate, rather than an individual, is named as a beneficiary), payable on death accounts, transfer on death accounts, etc.

Gross Estate, Defined
The decedent’s “gross estate” is the total value of ALL of decedent’s property, no matter how titled, for purposes of calculating decedent’s estate tax liability, if any. Currently, the first $1,000,000 of a decedent’s estate is exempt from estate tax in 2002 and 2003. This figure rises in subsequent years. With proper planning, spouses can currently pass $2,000,000 without estate tax liability.

Various Ways to Title Property
Titles to property control whether or not a probate is necessary. There are many ways to title property:

• Sole name of a person (only decedent’s name appears on bank account, house, or other assets);
• Tenants in common (each tenant owns his or her own portion and can pass it to his or her heirs at death; at decedent’s death, decedent’s tenant in common share must be probated).

The above two forms of property ownership require a court probate proceeding to pass ownership to a decedent’s heirs or devisees. They are considered the decedent’s probate estate. They are also part of the decedent’s gross estate.

Other ways to title property include:

• Joint tenants with right of survivorship (at death of one joint tenant, property automatically passes to surviving joint tenant(s) without a probate);
• Payable on death (POD) accounts (name a beneficiary for bank accounts or U.S. savings bonds; beneficiary automatically receives the property after the owner’s death without a probate, see Sections 45-6-201 through 227);
• Other assets with named beneficiaries, such as life insurance, annuities, individual retirement accounts (IRAs) (name a beneficiary and at owner's death, the property passes automatically to the named beneficiary without a probate, unless the beneficiary has predeceased the owner);
• Transfer on death (TOD) accounts (name a beneficiary to receive stocks, bonds, and other investment securities; beneficiary automatically receives the property after the owner’s death without a probate, see Sections 45-6-301 through 311);
• Transfer on death deeds (TODD) for real property (TODD must be prepared and recorded properly before the owner’s death to pass title to the real property automatically to the TODD beneficiaries after the owner’s death without a probate, see Section 45-6-401);
• Trusts (trustor can create a trust during his/her lifetime, transfer all property into the name of the trustee of the trust, and the trust property passes automatically to named trust beneficiaries upon trustor’s death without a probate);
• Life estates (a person retains an ownership interest during his/her lifetime, then upon his/her death, the property passes automatically to designated remainder beneficiaries without a probate; life estates usually occur with real property and require a special deed to create this interest).

The above seven forms of property ownership usually do not require a court probate proceeding to pass ownership to a decedent’s heirs or devisees. Therefore, they are not considered part of the decedent’s probate estate, but are part of decedent’s gross estate.

Medical and Other Information
Due to privacy concerns under the federal HIPAA law (Health Insurance Portability and Accountability Act of 1996), courts are seeing more probates opened solely for the purpose of gaining access to medical records or other information about the decedent. Once the court appoints a personal representative, he or she should have authority to access the decedent's records.

If a personal representative opens a case under the Uniform Probate Code to gather information, he or she is still responsible for all duties of a personal representative, such as giving notices to heirs, devisees, and creditors; preparing inventories, and accountings; etc.