All Assets Subject to Probate?

What is probate?  Probate is a court-supervised process of validating a decedent's will, paying off the decedent's debts, and ensuring that the decedent's assets go to the rightful beneficiaries named in the will. Or, in the absence of a will, to those who stand to inherit.

Probate varies slightly from state-to-state – many states offer a quicker, very efficient, less expensive alternatives for smaller estates. The decedent's probate estate is comprised of all of the assets that he or she held at the time of the actually death. Whether an estate is large or small, many ask, "Do all assets pass through probate?"  Very good question.  Answer is “Not necessarily the case”.

Assets not included in probate


In general, only the assets that are held individually in the decedent's name will pass through probate. Assets such as investment accounts and retirement accounts will transfer directly to beneficiaries without going through probate.

Assets usually not subject to probate:

  • Real estate with joint ownership with right of survivorship
  • Proceeds from a life insurance policy
  • IRAs and 401(k)'s
  • Cash in bank accounts with transfer-on-death designations
  • Property held in a trust

Any asset that allows the owner to name a beneficiary does not typically go through the probate process, including most assets placed in trusts. So, if an asset names you as a beneficiary, you should be able to assume ownership sooner than later even if it was tied up for a period of time in probate court.

Even if a named beneficiary conflicts with the information in a will, the beneficiary designation will supersede the will. This means that the named beneficiary will receive the assets over the person who was named in the will.

If there is any doubt or dispute over the name beneficiary, then the question will be resolved through the probate court.  Probate attorneys will be able to navigate you through this process, unlike Divorce counselors that practice family law. 

For all questions regarding your inheritance, call an experienced probate attorney in our directory today!

Disclaimer:  While every effort has been made to ensure the accuracy of this article, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and /or lawyer.