Probate assets: What assets are subject to probate?

You’ll acquire many things throughout your life, from the tchotchkes nestled on your bookcase to the house where you raise your family. These possessions are known as your assets, and can include any type of physical, financial, or digital property that you own.

When you pass away, your assets are transferred to your loved ones through a legal process called probate. During probate, a trusted person will be in charge of inventorying your assets, paying your debts, and distributing your property according to your last will and testament.

Many of your assets are likely “probate assets,” and will have to go through the probate process before they can be passed on to your loved ones.

What are probate assets?

A probate asset is any asset that has to go through the probate process after you pass away. This can include real estate property, bank accounts, and personal belongings.

What types of assets are subject to probate?

There are many types of assets that are subject to probate, including:

Individually-owned assets

If you own an asset with another person, they may be able to assume full ownership when you pass away. For example, say both your and your spouse’s names are on the deed to your house. When one of you passes away, the house won’t need to go through the probate process. Instead, the other person will automatically become the house’s full owner.

But any asset you own solely in your name may have to go through probate. These are your individually-owned assets, and they include:

• Titled assets (like your house or car)
• Investment accounts or portfolios
• Bank or brokerage accounts
• Businesses

Personal property

“Personal property” refers to the personal items you own. When you pass away, these items transfer to your loved ones through the probate process.

Common examples of personal property include:

• Jewelry
• Collectible items (like art, stamps, or coins)
• Family heirlooms
• Appliances
• Furniture
• Clothing
• Electronics

Some personal items may not have a lot of monetary value, but they can still carry a lot of sentimental value. Many people choose to give certain personal items to special people in their lives. For example, if you and your granddaughter enjoyed catching up over a cup of tea, it may be meaningful to leave her your favorite tea set in your will.

Tenancy in common property

“Tenancy in common” property is a type of asset that’s legally owned by multiple people, meaning each person's name is on the title or deed. Unlike jointly-owned property, where each person owns an equal share of the asset, tenancy in common means each person owns a specific percentage.

A tenancy in common arrangement is most often used by unmarried partners when one person isn’t able to buy the asset on their own.

Tenancy in common assets include:

• Real estate property
• Land
• Investment portfolios
• Bank or brokerage accounts

When one person dies in a tenancy in common arrangement, their portion of the property isn’t automatically transferred to the other person. Instead, the deceased’s share is passed to their heirs during the probate process.

Assets naming a deceased beneficiary

Certain assets don’t have to go through the probate process. Known as non-probate assets, these assets can generally pass directly to your loved ones.

You shouldn’t include non-probate assets in your will. Instead, you’ll need to choose a beneficiary for each of them by completing a beneficiary designation form from the institution that manages the asset. Then, when you die, these assets will transfer to your beneficiaries — no probate needed.

But if your chosen beneficiary passes away before you, you need to update your beneficiary designation form and name a new beneficiary. If you don't, these assets will have to go through the probate process. Without a living beneficiary, these accounts would be paid out to your estate, which can delay the probate process.

Keeping your estate planning documents up to date can save your loved ones time and hassle when you’re gone. That’s why experts recommend reviewing or updating your estate plan every three to five years, or whenever you experience a major life change, like having a baby or buying a house.

What assets can avoid probate?

Some assets avoid probate and pass directly to your loved ones after you die. These include:

• Trust assets: Property held in a trust isn’t subject to probate. Instead, trust assets transfer directly to your beneficiaries according to your trust documents.
• Assets that name a beneficiary: Some assets can transfer directly to a chosen beneficiary, meaning they don’t have to go through probate. This includes life insurance policies, retirement accounts, certain types of stocks and bonds, and payable on death (POD) or transfer on death (TOD) accounts. To make sure these assets bypass the probate process, you need to fill out a beneficiary designation form for each asset.
• Jointly-owned property: Owning property with someone else (like a partner or spouse) is known as joint ownership. When one of you passes away, the other person automatically becomes the property’s sole owner. This is only possible if both of your names are on the property deed or title.

Simplify probate by making a will

Probate assets include any items, property, or accounts you own that have to go through the probate process after you pass away. Because many of your belongings are likely probate assets, it’s important to protect them with an estate plan — starting with a will.

Having a valid, up-to-date will is the best way to make sure your probate assets pass easily to your loved ones.

With FreeWill’s free will-making tool, you can create your will in as little as 20 minutes. You can also update your will at any time for free, so that you’re prepared whenever life changes or new assets come your way.