The executor or administrator of a deceased individual's estate has a duty to collect all of the estate assets. These assets (also known as probate assets, or assets comprising the probate estate) include all of the property that the executor is entitled to oversee for the benefit of all parties that have an interest in the estate. Such parties include not only beneficiaries and heirs but also the deceased's creditors. It is therefore very important to distinguish probate property from nonprobate property, in order to separate what's available to those interested parties from what is not available to them. The estate's heirs, beneficiaries and creditors are normally entitled only to the assets that fall into the category of probate property, and property that avoids probate is generally beyond the reach of these parties. Only the probate property may be disposed of by the will of the deceased. Nonprobate property passes outside the probate estate and therefore cannot disposed of through the will.

The process must certainly first begin with the determination of exactly what property belonged to the deceased at his or her death. For the most part, this would include items that were held in the deceased's name alone; or, if held with others, in such a manner that did not permit the other owners to automatically take the deceased's share upon his or her death. As an example, if a deceased person held real estate under a tenancy in common with his brother, then the deceased's share would legally be a part of his probate estate and would not automatically pass to his brother. If they had held the property under a joint tenancy, however, the survivor would take all of the property without the process of probate.

In addition to the more common types of assets – such as real estate, bank accounts, securities, personal jewelry, works of art, and the like – that are regarded as probate property if held in the deceased's name alone, below are other types of property interests that may be considered probate property:

Share in a partnership. If the deceased was a member of a partnership, the remaining partners are required to account to his or her estate for the deceased's interests in the partnership (although partnership shares can also be held in joint names or in a trust to avoid probate).

Lawsuits. If the deceased had started a lawsuit against someone before his or her death and it is of the type that survives the death (such as a suit to recover property damages), then the executor may continue the action and any recovery made will become a part of the probate estate. Additionally, if the death was caused by someone else's negligence, most states allow the executor of the estate to bring a wrongful death action, part of the proceeds of which may be subject to probate.

Gifts made just before death. If the deceased made 'death bed' gifts and because of this there was not enough money in the probate estate to pay his or her creditors, the gifts may be ordered back to the estate to become probate property.

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