Also known as: non-probate property · nonprobate properties · nonprobate assets
Written by attorneys · grounded in primary & secondary sources — see below
Property that passes directly to designated transferees upon a decedent's death by operation of law or under the terms of a contract or instrument rather than through the probate estate.
Nestor Navarro and his wife Nina Nielsen owned their home as tenants by the entirety. While divorce proceedings were pending but not finalized, Nestor executed a will attempting to leave his interest in the home to his daughter Nora Nash. Nestor died still married with the tenancy intact. Title passed automatically to Nina by survivorship outside of probate.
Norman Nash held an investment account with a payable-on-death beneficiary designation naming his wife Naomi Norton. Norman executed a will attempting to redirect the account to his brother Naveen Nanda. Norman died before any change to the designation. The account passed directly to Naomi under the beneficiary designation.
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A will has no effect on nonprobate property. Such property passes directly to the transferees named in the governing instrument or by operation of law.
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Joint tenancy with right of survivorship, tenancy by the entirety, payable-on-death designations, and properly funded inter vivos trusts produce nonprobate property.
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Pending divorce proceedings alone do not sever a tenancy by the entirety or joint tenancy. The property remains nonprobate until a final decree or other severance occurs.
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Some states include specified nonprobate assets in the augmented estate against which a surviving spouse may elect.
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