What Assets Pass Through Probate and What Can Be Avoided?
It’s important to recognize that not every asset in a person’s estate must go through probate. Certain types of property can bypass this legal procedure altogether, moving directly to designated individuals without court involvement.
The difference often comes down to how the asset is titled, whether a beneficiary has been named, or if the property has been placed in a trust. For families, particularly those dealing with complicated estates or sensitive family dynamics, understanding what falls under probate and what doesn’t can help prevent unnecessary delays, reduce legal expenses, and more.
This is where working with an estate lawyer can be especially valuable. Keep reading for a closer look at the types of assets that typically pass through probate, those that can be excluded from it, and the estate planning strategies that can make this transition smoother and more efficient for the families left behind.
What Is Probate?
Probate is the legal process of validating a deceased person’s will (if one exists), identifying their assets, paying debts and taxes, and distributing the remaining property to heirs. This process varies by state but generally follows similar principles across the country.
If a person dies without a will (intestate), the probate court will distribute assets based on state intestacy laws. In these cases, having guidance from a professional who handles family law matters can be invaluable, particularly when disputes between relatives arise.
Common Assets That Pass Through Probate
Not every asset automatically avoids probate. In fact, a significant portion of property owned by an individual at the time of their death may be subject to this legal process, particularly if no alternative transfer arrangements were made in advance. The following types of property typically require probate before they can be transferred to heirs.
1. Solely Owned Property
Assets titled only in the deceased person’s name with no beneficiary designation must go through probate. Here are some examples.
A personal home or land solely in their name
Vehicles registered exclusively to them
Bank accounts without joint owners or pay-on-death (POD) designations
2. Personal Belongings
Items like jewelry, furniture, collectibles, and household goods generally pass through probate unless they’ve been transferred or assigned to someone via a trust or other estate planning tool.
3. Investments Without Beneficiary Designations
If stocks, bonds, or brokerage accounts lack a transfer-on-death (TOD) beneficiary, these assets must be processed through probate.
4. Business Interests
If the deceased owned a business, whether as a sole proprietor, partner, or shareholder, their interest in the company may need to be probated unless provisions are made in a buy-sell agreement or trust.
Assets That Can Avoid Probate
With thoughtful planning, many assets can bypass probate entirely, saving time, legal fees, and reducing the potential for disputes. Professionals in family law frequently recommend several estate planning strategies to minimize the assets subject to probate.
1. Jointly Owned Property With Right of Survivorship
When property is jointly owned with survivorship rights, ownership automatically transfers to the surviving owner upon one’s death. This applies to the following.
Joint bank accounts
Real estate held as joint tenants with right of survivorship
Vehicles titled in both spouses’ names
2. Beneficiary Designations
Assets with designated beneficiaries typically pass directly to the named individual, bypassing probate. See the common examples below.
Life insurance policies
Retirement accounts like 401(k)s and IRAs
Bank accounts with pay-on-death (POD) designations
Investment accounts with transfer-on-death (TOD) instructions
It’s essential to review and update beneficiary forms regularly to reflect current wishes and avoid conflicts. This is a step often addressed during consultations with family law professionals, especially when marriages, divorces, or births occur.
3. Assets Held in a Living Trust
A living trust is a legal arrangement where a person (the grantor) places assets into a trust, managed by a trustee, for the benefit of designated beneficiaries. When the grantor dies, the trustee can distribute trust assets according to its terms without court involvement. Here are some common assets placed in trusts.
Real estate
Bank accounts
Investment portfolios
Personal property
Family law practitioners frequently recommend trusts for clients seeking to protect family privacy, avoid probate, and establish clear distribution instructions.
Why Avoiding Probate Can Be Beneficial
Avoiding probate offers several practical and financial benefits for surviving family members, which is why it remains a priority in estate planning discussions, particularly within family law practices. Family law professionals frequently advise clients on strategies to minimize probate exposure. Here are some potential benefits.
Quicker distribution of assets: Probate can take months or even years; bypassing it allows heirs to receive property sooner.
Reduced legal costs: Probate proceedings can be expensive, with court fees, attorney costs, and appraisal charges.
Privacy preservation: Probate is a public process, meaning anyone can access records about the deceased’s assets and beneficiaries. Trusts and beneficiary designations keep this information private.
Minimized family conflict: Clear, direct asset transfers can help reduce the likelihood of disputes among heirs — a situation often handled by family law attorneys.
Whether through creating living trusts, updating beneficiary designations, or using joint ownership structures, these estate planning tools can provide peace of mind for individuals and smoother transitions for those left behind.
How Probate Laws Differ by State
It’s important to remember that probate rules and thresholds differ from state to state. Some states offer simplified procedures for small estates, while others require full probate for nearly all assets not specifically structured to avoid it.
For example, in some areas, personal property under a certain value may be transferred using a simple affidavit. Family law professionals often stay updated on these varying state regulations to provide families with reliable guidance during estate planning.
Steps You Can Take to Minimize Probate
Although not every estate can avoid probate entirely, several steps can reduce the number of assets subject to it. By making decisions about how property is owned, titled, or designated, it’s possible to simplify the estate administration process and ease the burden on surviving loved ones. A family law firm with estate planning services can assist with the following.
Creating a revocable living trust: Transfer major assets into the trust during your lifetime.
Updating beneficiary designations: Review life insurance policies, retirement accounts, and bank accounts regularly.
Adding joint ownership with rights of survivorship: Particularly for real estate and vehicles.
Using pay-on-death and transfer-on-death designations: Available for bank and investment accounts in many states.
These measures are especially important during significant life changes, such as marriage, divorce, or the birth of a child — times when people often consult family law professionals for legal advice and estate updates.
Work With Our Family Law Attorneys Today
Probate is a necessary legal process for distributing a deceased person’s estate, but it isn’t always required for every asset. Families handling these decisions in Clinton, Maryland; Bowie, Maryland; Fort Washington, Maryland; Largo, Maryland; and Washington D.C. benefit from professional advice, especially when family law intersects with estate planning. Contact Sanders & Sanders, Attorneys at Law today to learn more about the probate process.