Does Everything From An Estate End Up In Probate?

One of the more confusing aspects of the probate process is figuring out what does or doesn't go through it. Some assets aren't subject to probate, but many are. Let's look at several different classes of assets so you can understand how a probate attorney will see this issue.

Joint-Ownership or -Tenancy

If more than one party owns an asset, the other joint owners have equitable claims to the ownership stake of another owner who dies. This occurs even if the decedent is named a beneficiary because the surviving owners have the first claims. Surviving joint owners take immediate possession of the stake upon the passing of other owners.

Notably, this doesn't include anything where the asset class breaks up ownership. For example, shares of stock are treated as individual assets and not jointly-owned ones. The share is the asset, and it is subject to probate unless designated as part of another exempt class.

Different Beneficiary Designations

Retirement accounts, life insurance policies, and many types of bank accounts have named beneficiaries. If this is the case with an asset, the beneficiary will not need to hire a probate lawyer. Instead, they will have to present a death certificate to assert the claim and sufficient identification to prove they are the beneficiary.

There is one scenario where these assets might end up in probate. If someone is able to invalidate the beneficiary's claim by, for example, proving fraud, the question of the division of the unclaimed asset would likely revert to a probate court.


Some types of trusts are exempt from probate. Generally, a trust is subject to examination along with the will, especially if the trust is part of the will. This is called a testamentary trust. Presuming there are no doubts about the formation of the trust, though, it should coast through probate.

However, a trust that went into effect before the passing of the decedent is not subject to probate. If there are concerns about the nature of the trust, that would require separate litigation to attempt to invalidate the trust.

Overly Broad Beneficiaries

A beneficiary has to be a specific person or organization, and it has to be legally recognized. If a decedent names "my estate" or "charity" as the beneficiary of something from one of the previous classes, then the question of what that means will go through probate. The court will then determine what the intent of the overly broad beneficiary classification was and distribute the money accordingly.

If you have other questions, reach out to a local probate attorney.