What Assets Go Through Probate?

When a loved one passes away, families are often left not only with grief but also the complex task of managing their estate. One of the most misunderstood parts of this process is probate - the legal process used to validate a will and distribute assets. Not all property is subject to probate, which leads many to ask: What assets go through probate?

Understanding what passes through probate - and what can be structured to avoid it - is essential for effective estate planning. This article breaks down probate assets, non-probate assets, and what you can do to prepare. Contact us by either using the online form or calling us directly at 414-253-8500 for legal assistance.

What Is Probate?

Probate is the legal process by which a court oversees the distribution of a deceased person's assets. This includes:

Validating the will (if one exists)
Appointing a personal representative or executor
Identifying and inventorying the deceased's property
Paying debts and taxes
Distributing the remaining assets to rightful heirs or beneficiaries

Not all assets require probate - and structuring your estate properly can save your loved ones time, money, and stress.

Assets That Typically Go Through Probate

Only assets solely owned by the decedent with no designated beneficiary generally go through probate. These are commonly referred to as probate assets. Examples include:

1. Solely Owned Real Estate (Titled in One Name Only)

Property titled solely in the deceased person's name (without joint ownership or a transfer-on-death deed) must go through probate before it can be transferred to heirs.

2. Bank Accounts Without Beneficiaries or Payable-on-Death Designations

If a checking, savings, or CD account does not have a named "payable-on-death" (POD) beneficiary, it will likely be subject to probate.

3. Investment Accounts Held Solely by the Decedent

This includes stocks, bonds, mutual funds, or brokerage accounts that are not titled jointly or lack a transfer-on-death (TOD) designation.

4. Personal Property

This includes tangible items like:

Vehicles not jointly titled
Jewelry
Furniture
Art collections
Antiques
Firearms

Unless otherwise arranged, these assets must be valued, inventoried, and go through probate.

5. Business Interests

If the decedent held a sole proprietorship or had an ownership share in a business that did not include a succession plan or buy-sell agreement, the business interest may require probate.

6. Life Insurance Payable to the Estate

If the life insurance policy does not name a living beneficiary - or names the estate as beneficiary - the proceeds become probate assets.

7. Retirement Accounts Without Designated Beneficiaries

IRAs, 401(k)s, or other qualified plans with no named beneficiary (or with deceased beneficiaries) typically pass to the estate and require probate.

Examples of Common Probate vs. Non-Probate Assets

Probate Assets	Non-Probate Assets
Bank account in decedent's name only	Joint bank accounts with rights of survivorship
Real estate titled solely in decedent's name	Real estate held as joint tenants or with TOD deed
Personal belongings	Assets held in a living trust
Vehicles titled in decedent's name only	Life insurance with a named living beneficiary
Investment accounts without TOD/POD	IRAs/401(k)s with designated beneficiaries

How Probate Affects Timing and Costs

Probate can take months or even years, depending on the estate's complexity. It often involves:

Court filing fees
Executor or attorney fees
Appraisals and accounting services

Because probate is a public process, it can also expose private family matters and financial details.

Strategies to Avoid Probate

Fortunately, proper estate planning can help minimize - or eliminate - probate. Common tools include:

Revocable Living Trusts: Allows assets to pass outside of probate court
Joint Ownership with Right of Survivorship: Automatically transfers ownership to the surviving co-owner
Transfer-on-Death (TOD) Deeds: Used for real estate to bypass probate
Beneficiary Designations: Apply to bank accounts, investment accounts, retirement accounts, and life insurance

Learn more about effective planning by reading The Benefits of a Revocable Living Trust vs. a Will.

What Happens If Assets Are Not Properly Titled?

When assets aren't correctly titled or lack a beneficiary designation, they default to becoming probate assets - even if your intention was otherwise. Some common mistakes that cause assets to go through probate include:

Failing to update beneficiary designations after a divorce or death
Owning property in your name alone without a will or trust
Leaving out newly acquired assets from your trust
Naming the estate as a beneficiary on retirement or insurance accounts

These oversights can create delays, legal disputes, and unnecessary expenses for your heirs. A knowledgeable estate planning attorney can help review titles and documents to prevent these costly errors.

Does a Will Avoid Probate?

A will does not avoid probate - in fact, it directs the probate process.

When someone passes away with a will, the document must be submitted to probate court for validation. Then, the court will oversee the executor's handling of:

Debt payments
Asset valuation
Distribution of property

While a will is better than having no plan at all, it's not a tool for avoiding probate. To bypass probate altogether, you'll want to consider additional strategies such as revocable trusts or transfer-on-death arrangements.

Explore this further by reading our article on Wills vs. Trusts: A Comprehensive Guide.

The Role of Trusts in Avoiding Probate

Placing assets into a revocable living trust allows them to pass directly to beneficiaries without court intervention. Assets titled in the name of the trust are considered non-probate assets, which can significantly:

Reduce delays
Lower administrative costs
Maintain privacy
Help avoid family disputes

Trusts are especially beneficial when managing complex estates, out-of-state real estate, blended families, or individuals with privacy concerns.

Digital Assets and Probate

As digital assets become a larger part of modern life, many people forget they may need to be addressed in estate planning. Depending on the circumstances, some digital assets may require probate - especially if:

There are no listed heirs or access instructions
The terms of service prohibit transfer
No one knows the login credentials

Examples include:

Cryptocurrency wallets
Monetized social media accounts
Online businesses
Email accounts with sensitive data

Planning for your digital assets can ensure they're handled smoothly and privately.

What Happens During the Probate Process?

If probate is required, here's what generally occurs:

Filing the Will: The original will is submitted to probate court.
Appointment of Executor or Administrator: If there's a will, the executor is usually named. If no will exists, the court appoints a personal representative.
Notice to Creditors: Creditors must be notified and given a chance to submit claims.
Inventory and Appraisal: All assets are identified and valued.
Payment of Debts and Taxes: Outstanding obligations must be paid from the estate.
Distribution of Remaining Assets: Once debts are cleared, assets are distributed to heirs per the will or state law.

Key Considerations for Families

Understanding what goes through probate is only part of the equation. You also need to consider:

Family dynamics - Disagreements can arise when the probate process isn't clear or efficient.
Tax implications - Probate doesn't always mean taxes, but it can impact the timing of returns or distributions.
Out-of-state property - If the deceased owned property in multiple states, ancillary probate may be required.
Unclaimed property - Assets with unclear ownership or documentation can get lost in the probate process.

When to Seek Legal Guidance

Every estate is different, and a one-size-fits-all approach often leads to unintended consequences. Working with an experienced probate attorney can help:

Clarify which assets require probate
Assist executors in fulfilling their legal duties
Re-title property to avoid probate in the future
Draft estate plans that keep your wishes intact

At Heritage Law Office, we guide families through probate and estate planning with compassion and clarity. Let us help you protect your family's legacy and avoid common probate pitfalls.

Contact an Attorney for Probate & Estate Planning Guidance

If you're unsure whether your or a loved one's assets will go through probate, don't leave it to chance. Planning ahead can save your family stress, time, and unnecessary legal costs.

Contact our experienced probate attorneys at Heritage Law Office for assistance in protecting your estate. Use our online contact form or call us directly at 414-253-8500 to schedule a consultation.

Frequently Asked Questions (FAQs)

1. What is the difference between probate and non-probate assets?

Probate assets are assets owned solely by the deceased that do not have a beneficiary designation, joint owner, or are not held in a trust. These must go through probate court. Non-probate assets bypass the court process and pass directly to named beneficiaries or joint owners, such as life insurance policies or jointly owned real estate.

2. Can jointly owned property avoid probate?

Yes. Property owned as joint tenants with right of survivorship automatically passes to the surviving owner without going through probate. This applies to real estate, bank accounts, and vehicles if correctly titled.

3. Do all estates require probate?

No. Small estates may qualify for simplified procedures or even avoid formal probate altogether, depending on the total value of probate assets and state laws. Assets with designated beneficiaries or held in trust are also excluded from probate.

4. Why should I try to avoid probate?

Avoiding probate can save time, reduce legal costs, and keep family matters private. Probate is a public, court-supervised process that can take months or longer. Avoidance strategies can allow for a smoother, quicker transfer of assets to loved ones.

5. What happens if someone dies without a will?

If a person dies intestate (without a valid will), their probate assets are distributed according to the state's intestacy laws. This often means assets go to the closest relatives, such as a spouse, children, or parents, regardless of the decedent's wishes.