Probate assets are things the person owned in their own name alone, with no beneficiary, no co-owner with survivorship rights, and no trust attached. Those need a court case, or a small estate procedure, before anyone can take them. Non-probate assets pass straight to someone at the moment of death because a contract or the title says so. That covers life insurance and retirement accounts with a named beneficiary, payable-on-death bank accounts, joint accounts with a survivorship agreement, real estate with a transfer on death deed, and property held in a living trust.
Sort the assets into these two groups first. It tells you whether you need probate at all.
Probate or non-probate, asset by asset
| Asset | Usually probate or non-probate? | What decides it |
|---|---|---|
| House or land in the person's name alone | Probate | Unless a transfer on death deed was recorded, or it was held in a trust |
| House with a transfer on death deed | Non-probate | Texas (Tex. Est. Code ch. 114) and Ohio (Ohio Rev. Code § 5302.22) authorize these deeds |
| Bank account in the person's name alone | Probate | Unless it has a payable-on-death beneficiary |
| Payable-on-death (POD) bank account | Non-probate | The account agreement names who is paid at death (Tex. Est. Code § 111.052) |
| Joint bank account | Depends | In Texas, survivorship requires a written agreement signed by the party who died (Tex. Est. Code § 113.151) |
| Life insurance, annuity, 401(k), IRA with a living beneficiary | Non-probate | The beneficiary designation (Tex. Est. Code § 111.052) |
| Life insurance payable to "my estate," or whose beneficiaries all died first | Probate | No living beneficiary to take it. Iowa, for example, counts life insurance in the estate only when it is payable to the estate (Iowa Code § 633.197) |
| Assets titled in a living trust | Non-probate | The trustee holds title |
| Car, personal belongings, cash at home | Probate | Some states have simplified transfers, e.g. Indiana vehicle title transfer by affidavit (Ind. Code § 29-1-8-1(c)) |
How a non-probate transfer works
The contract or deed makes the transfer, not the will, so the probate court isn't needed. Texas puts it this way: a provision in an insurance policy, retirement account, deposit agreement, trust agreement, conveyance or similar written document saying that money or property passes at death to someone the person chose is "considered nontestamentary" (Tex. Est. Code § 111.052). Nontestamentary just means it doesn't pass under the will.
Three rules worth knowing:
- The beneficiary designation beats the will. The person named on the account generally takes it even if the will says something else, because the account never becomes part of the probate estate.
- The beneficiary has to outlive the owner. Under a Texas transfer on death deed, the beneficiary must survive the owner by 120 hours. If they don't, that share lapses (Tex. Est. Code § 114.103).
- A transfer on death deed can be revoked. Texas makes them revocable even if the deed says otherwise (§ 114.052).
Can creditors reach non-probate assets?
Sometimes. Texas says its nontestamentary transfer rules don't limit a creditor's rights under other law (Tex. Est. Code § 111.053). Michigan's claim deadlines protect "nonprobate transferees," along with the estate and heirs, once the claim period has run (MCL 700.3803), which means those transferees can face claims before then. If the probate estate is too small to cover the debts, ask an attorney whether non-probate assets are exposed in your state.
When nothing needs probate
If every asset passed by beneficiary, survivorship, deed or trust, there may be nothing left for a court to transfer. If even one thing is still in the person's name alone, you'll need either a small estate procedure or a probate case. Check the small estate limits first, and for a full case, which court handles probate in your state.
A will on its own never moves property. In Texas a will isn't effective to prove title until it's admitted to probate (Tex. Est. Code § 256.001). The living trust vs will comparison covers what that means for estate plans.
Making the asset list
EverSettled walks you through finding every account and policy, noting how each one is titled, and working out which go to beneficiaries and which need the court. Having that list in hand gets you attorney-ready sooner. After that, EverSettled guides you through claiming each non-probate asset and the rest of the estate admin, which gets the money to the family faster.
Frequently asked questions
What assets do not go through probate?
Assets with a named beneficiary (life insurance, retirement accounts, payable-on-death accounts), joint accounts with survivorship rights, real estate with a transfer on death deed, and property held in a living trust.
Do bank accounts with a beneficiary go through probate?
No. A payable-on-death designation in the account agreement sends the money straight to the named beneficiary. The bank will usually ask for a death certificate and identification.
Does a house with a transfer-on-death deed avoid probate?
Yes, in states that allow these deeds, such as Texas and Ohio, as long as the deed meets the state's requirements and the beneficiary survives the owner (by 120 hours under Texas law).