Probate Assets vs. Non-Probate Assets

The Assets Most Commonly Caught in Probate

While the list above covers every category, a handful of asset types account for the vast majority of probate proceedings and costs:

The Survivorship Trap — What Happens at the Second Death

Many couples own assets jointly with right of survivorship — which avoids probate at the first death. But at the second death, those same assets are now in one person's name with no surviving co-owner. Without additional planning, they all go through probate.

This is one of the most common gaps we see: married couples who relied on joint ownership thinking their estate plan was complete, and a surviving spouse who discovers — after the first death — that their entire estate will go through probate when they die.

The Gray Areas — Assets That May or May Not Go Through Probate

Some assets fall into ambiguous territory depending on how they're structured:

• Retirement accounts with "estate" named as beneficiary. If no living beneficiary is designated, the retirement account falls to the estate and goes through probate — plus all distributions become immediately taxable to the estate, potentially accelerating income tax.
• Life insurance with a deceased beneficiary and no contingent. If the named beneficiary predeceased the insured and no contingent was named, the proceeds revert to the estate — triggering probate for the insurance payout.
• Jointly owned property where the co-owner predeceased. If a joint tenant died before the primary owner and title was never updated to reflect sole ownership, the property's title situation may be unclear and require court action to resolve.
• Accounts at foreign institutions. Assets held at foreign banks or investment firms may require probate proceedings in that country's courts — a complex and expensive process entirely separate from domestic probate.

Common Mistakes

• Assuming joint ownership solves the problem permanently. Joint tenancy avoids probate at the first death — but leaves the survivor's entire estate exposed at the second death. It's a delay, not a solution.
• Forgetting accounts opened at secondary institutions. A savings account at a credit union, a CD at a regional bank, or a brokerage account at a firm where the primary advisor isn't on file — these accounts are easy to overlook and often have no designations.
• Never updating after divorce. An ex-spouse named as joint owner on a property or bank account may maintain legal rights to that asset until the title or designation is formally updated.
• Not reviewing after inheriting assets. An inheritance received during your lifetime — a property, an account, personal property — needs to be integrated into your estate plan or it becomes a probate asset at your death.
• Assuming small assets don't matter. Even a $10,000 bank account with no POD designation technically requires probate to transfer. In many states, a small estate affidavit may be available for modest amounts — but the threshold is lower than most people assume.

Real-Life Example