Chapter Two: Which Assets Go Through Probate And Which Ones Don’t

Assets Subject To Probate

Generally, only assets held solely in your name, with no joint owner and no beneficiary designation, are subject to probate.

These are the assets that legally require court oversight to determine who inherits them and to authorize someone to handle them.

This includes:

• Individually owned bank or investment accounts without beneficiaries
• Real estate held solely in your name
• Personal property, from vehicles to jewelry, collectibles, and household items, that are not owned jointly

However, several types of assets bypass probate entirely. For example, real estate with special deed planning, such as life estate deeds or New York’s newer transfer-on-death (TOD) deeds, which function similarly to naming a beneficiary. Additionally, assets held in a trust, whether a trust you created or one established for your benefit. This is because those assets are technically owned by the trust, not you.

Generally speaking, if an asset wasn’t exclusively in your individual name at the time of your passing, it likely avoids probate. However, while most jointly owned accounts or property do not go through probate, the type of joint ownership matters.

Joint Ownership With Right Of Survivorship

This is the most common form of joint ownership, nearly universal for bank accounts and very common for investment accounts. When one owner dies, the surviving owner automatically becomes the full owner. These assets bypass probate entirely.

Tenants In Common

In this less common form of ownership, each person owns a separate share. When an owner dies, their share does not pass automatically to the others. Instead, it becomes a probate asset and is distributed under their will.

This can apply to real estate or investment accounts, though bank accounts are almost always either joint-with-survivorship or simply not joint at all.

IRAs And 401(k)s

IRAs and 401(k)s are individually owned, but they almost always have beneficiary designations. Because of that, the account passes directly to the named beneficiary without needing to go through probate.

It is important to understand that your will does not override the beneficiary on your retirement account. If you named someone years ago and later disinherited them in your will, the old beneficiary designation still controls. There are limited exceptions, mostly involving an ex-spouse following a divorce, but they vary and are far from guaranteed.

The safer (and strongly recommended) approach is to update your beneficiary designations any time your life changes, such as events like marriage, divorce, the death of a beneficiary, or major shifts in your relationships.

When There’s No Clear Title Or Documentation

When ownership of an asset or an account is unclear, or records are outdated, the default assumption is that the asset is part of the estate and must go through probate. For example:

• A life insurance policy or retirement account with a deceased beneficiary and no contingent beneficiary
• Personal items or keepsakes where family members disagree about ownership
• Assets with missing titles or unclear paperwork

Disputes can become emotional quickly. Often, arguments aren’t about the monetary value but the sentimental meaning behind an item.

In one case we handled, a family was fighting over a brooch of modest value. The case boiled down to whether the mother owned it at death or whether she had gifted it to her daughter before. When the daughter predeceased her mother, ownership wasn’t clear. The case eventually went to trial, not because of the brooch’s worth, but because of the feelings and family dynamics involved.

Case in point: when ownership is murky, the court has to make the final call and that often leaves nobody happy.