June 2026:

The MLO Minute: “Probate vs Non-Probate Assets” 

By Jennifer Simons, Esq., Attorney in the Estates and Trusts Department —

One of the most frequently asked questions by clients is “what is the difference between probate and non-probate assets?” Most clients do not realize that there is a difference in the way that these assets get distributed at death, and why it is important to understand which assets are probate assets and which are non-probate. In simple terms, probate assets are assets that get distributed according to a person’s Will, and non-probate assets pass automatically to the person or persons who are named as a beneficiary of certain accounts or automatically pass by operation of law, such as with a joint account or real property held jointly. It is critical to understand the difference between these two types of assets so that your estate is distributed exactly according to your wishes.

Another question that clients frequently ask about is the meaning of the term “probate”. Probate is the term that describes the court supervised process of administering an estate according to the terms of a person’s Will. Probate assets are those assets that are owned solely by an individual and do not have a designated beneficiary, such as real estate or an automobile titled only in the decedent’s name or bank accounts solely in the decedent’s name.  Generally, these are assets that do not have a beneficiary designated on the account or are not held jointly with anyone else. Probate assets will be distributed according to the terms of your Will and will be distributed to those individuals designated in your Will to receive those assets.

Non-probate assets are assets that already have a designated beneficiary.  Typically, these are retirement accounts, such as an IRA or a 401k account, or a bank account which names a beneficiary upon the death of the account owner, or a joint bank account with another person. Assets that are held in a trust are also non-probate assets and they automatically pass to the person who is named as a beneficiary of the trust. The most important thing to know about non-probate assets is that these assets will pass automatically to the designated beneficiary or joint owner upon the death of the owner of the account, regardless of what the Will states. Non-probate assets bypass the Will and go directly to the named beneficiary of the account. Many clients assume all of their assets will be distributed according to the terms of their Will, and do not realize that this is not the case for non-probate assets.

Sadly, many estate plans are not carried out as intended, and assets are not distributed according to a person’s wishes, due to failing to review and modifying (if necessary) any beneficiary designations of non-probate assets. If you intend for all assets of your estate to pass to the same beneficiaries and in the same amounts as stated in your Will, it is essential to make sure that the beneficiary designations for any non-probate assets match the terms of the Will. Anytime that a person makes changes to their Will, it is necessary to review the beneficiary designations of all non-probate assets also, and make any revisions as needed to ensure that your entire estate plan is carried out according to your wishes.