Also known as: probate nonprobate distinction · probate vs nonprobate · probate property · nonprobate property · probate assets · nonprobate assets · probate avoidance · nonprobate transfer
Written by attorneys · grounded in primary & secondary sources — see below
The legal distinction between assets that pass through court-supervised administration upon a decedent's death and those that transfer directly to designated beneficiaries by operation of law or contract. Probate property consists of assets owned by the decedent at death that are subject to estate administration. Nonprobate property includes arrangements such as joint tenancies with right of survivorship, payable-on-death accounts, life insurance beneficiary designations, and revocable trusts that shift possession or enjoyment outside probate at death.
Patricia Patel and Pierre Poulin held their home as tenants by the entirety. While divorce proceedings remained pending, Patricia executed a will leaving her interest in the home to her nephew. Patricia died before any decree severed the tenancy. Title to the home passed directly to Pierre by operation of law rather than through the will or probate administration.
Penelope Price and Perry Pratt divorced. Perry had previously named Penelope as beneficiary on his ERISA-governed life insurance policy and pension plan. Perry died shortly after the divorce without changing the designations. The plans paid Penelope directly as the named beneficiary, bypassing probate and any state revocation statute.
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Priscilla Parks died leaving both probate assets and nonprobate transfers. Her estate's personal representative brought a claim in federal court asserting tortious interference with an expected inheritance from nonprobate assets. The court examined whether the claim fell within the probate exception to federal jurisdiction or could proceed independently of state probate proceedings.
A will has no effect on property held in joint tenancy with right of survivorship or as tenants by the entirety. Title passes directly to the surviving joint tenant by operation of law if the tenancy remains intact at death.
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The probate estate includes only assets owned by the decedent at death that are subject to administration under state decedents' estates laws. Assets that pass outside probate by beneficiary designation or survivorship are excluded.
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Some state statutes augment the probate estate with specified nonprobate transfers when computing the surviving spouse's elective share. The augmented estate then determines the fraction available to the spouse.
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Under the Uniform Probate Code, transferees of nonprobate transfers may be liable to the probate estate for allowed claims and statutory allowances to the extent the estate is insufficient, up to the value received.
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…decree of dissolution or declaration of invalidity.” Wash. Rev. Code § 11.07.010(2)(a) (1994). That statute applies to “all nonprobate assets, wherever situated, held at the time of entry by a superior court of this state of a decree of dissolution of marriage or a declaration of invalidity.” § 11.07.010(1). It defines…