Quick answer: Assets go through probate when they are owned in the deceased person's name alone, with no joint owner who has survivorship rights and no named beneficiary. Assets that already have a beneficiary or a surviving co-owner pass outside probate: life insurance, retirement accounts, payable-on-death accounts, jointly owned property with survivorship rights, and property held in a living trust. What decides it is how each asset is titled, not what the will says.
On this page:
- The rule: how an asset is titled decides
- Assets that go through probate
- Assets that pass outside probate
- What about the house?
- A will does not avoid probate; a living trust can
- Where people get it wrong
- Skipping probate is not the same as owing nothing
- How to find out what applies to you
The rule: how an asset is titled decides
Probate is the court-supervised process of collecting a person's assets, paying their debts and taxes, and distributing what is left to heirs or beneficiaries. It is built for property that has no other way to reach the right person at death. If something already has a named recipient, probate has nothing to do.
That is why two people with identical bank balances can face completely different outcomes. The deciding facts are on the account statement, the deed, or the beneficiary form, not in the will. Probate rules are set by each state, and probate courts operate under state law, so the details, thresholds and shortcuts vary. The Estate Value Calculator shows what counts toward the probate estate in each state.
Assets that go through probate
Property that is owned by the deceased alone, with no survivor and no beneficiary attached, is part of the probate estate. In practice that usually means:
- Bank and brokerage accounts in one name with no payable-on-death or transfer-on-death designation.
- Real estate titled to the deceased alone. Only property titled in the deceased's name alone is part of the probate estate, according to a county probate court.
- A share of property held as tenants in common. Tenancy in common has no right of survivorship, so the deceased owner's share does not pass to the other owners.
- Vehicles and personal belongings owned alone, such as jewelry, furniture and collectibles.
- Anything payable to the estate itself. If the estate is the named beneficiary of a policy or account, or no beneficiary is named, the asset can end up in probate. Check the contract's terms.
Smaller estates can sometimes skip the full process even when they hold probate assets. Many states let a survivor collect personal property with an affidavit below a set value; the small estate affidavit checker shows whether an estate qualifies, and our guide on when probate is required explains the decision.
Assets that pass outside probate
The Uniform Probate Code, which many states have adopted in some form, lists the kinds of arrangements that move property at death without a court: provisions in an insurance policy, pension plan, individual retirement plan, employee benefit plan, account, security, trust or deed. The official comment adds that such instruments do not have to be probated, and the personal representative has no power or duty over those assets. In everyday terms:
- Life insurance with a named beneficiary.
- Retirement accounts, pensions and annuities with a named beneficiary, which court self-help centers list as property that transfers to the beneficiary without probate court.
- Bank accounts and securities with a payable-on-death or transfer-on-death designation.
- Property owned in joint tenancy with right of survivorship, and tenancy by the entirety, a form reserved for married couples, both of which give the survivor the deceased owner's share automatically.
- Assets owned by a living trust.
- Real estate covered by a transfer-on-death deed, where the state allows one (more on that below).
Not every state offers every one of these tools, and the rules for each differ. Our guide on ways to keep assets out of probate covers how people use them on purpose.
What about the house?
The answer depends entirely on how the deed reads. A house titled to the deceased alone goes through probate. A house held jointly with a right of survivorship passes to the surviving owner. A house covered by a transfer-on-death deed passes to the person named in it.
That last option is not available everywhere. The American Bar Association's latest count is that 32 American jurisdictions permit real property to be transferred by a transfer-on-death deed, and more legislatures keep taking up the law. A handful of other states, mainly in the South, use an enhanced life estate deed known as a "Lady Bird" deed to reach the same goal. In a place that offers neither, a house with no co-owner and no trust has fewer ways around probate. That is one of the biggest reasons the answer to "what goes through probate" changes from state to state.
A will does not avoid probate; a living trust can
Many people assume that having a will means skipping probate. It does the opposite: a will tells the court who should receive the property titled in the deceased's name alone, and probate is what passes title to those people. A will can make that process easier, but it does not remove the need for it.
A living trust works differently. If the trust actually owns the assets, they pass under the trust's terms without probate. The catch is that assets left out of the trust are still in the deceased's name, so they still go through probate. See how probate and a living trust compare for the costs and trade-offs.
Where people get it wrong
- Assuming the will controls everything. It only controls what is titled in the deceased's name alone. Beneficiary forms and joint titles work on their own.
- Leaving beneficiary forms out of date. An insurance or retirement designation is a contract with the insurer or plan, so review it after a marriage, a divorce or a death in the family.
- Mixing up joint tenancy and tenancy in common. Only forms with a right of survivorship, such as joint tenancy, pass the share to the survivor. A property held as tenants in common goes through probate when one owner dies.
- Naming the estate as beneficiary without meaning to, which can pull an asset back into probate.
- Forgetting to fund the trust. A trust that never received the house or the accounts avoids nothing.
Skipping probate is not the same as owing nothing
Debts. Some states let creditors reach nonprobate assets when the probate estate cannot pay what is owed. Maine's probate code, for example, makes the recipient of certain nonprobate transfers liable for allowed claims and statutory allowances when the estate is insufficient, up to the value received. Rules like this vary by state.
Taxes. The federal estate tax is calculated on a different list. The IRS describes the gross estate as everything the person owned or had certain interests in at death, including cash and securities, real estate, insurance, trusts, annuities and business interests. So life insurance and a living trust can be outside probate and still count for estate tax. Most simple estates do not need to file, because a return is required only above a filing threshold set for the year of death. Our guide on inheritance tax and estate tax explains the difference, and the state estate tax calculator covers the states that add their own tax.
How to find out what applies to you
- List every asset: accounts, property, vehicles, policies, retirement plans, business interests.
- Check how each one is titled and whether a beneficiary or co-owner is attached.
- Add up only the assets that would go through probate. That total helps decide whether an estate can use a shortcut, and it can affect what probate costs.
- Check your state's rules, because they decide which shortcuts and transfer tools exist.
The Estate Value Calculator does steps two to four state by state, and the probate cost calculator estimates what the process would cost. If you are new to the process, start with how probate works, or browse all our probate calculators.