Small-Firm Care. Large-Firm Experience & Power.

What Assets Go Through Probate?

| Jul 10, 2023 | Probate Litigation

Understanding probate is crucial for estate planning and asset distribution after someone’s passing. Probate is the legal process of distributing a deceased person’s assets and settling debts. Assets that are exempt from probate can go directly to the designated beneficiaries, without waiting for the probate process to be completed. What assets go through probate? If you would like to know about this process, please consider scheduling a consultation with the Tennessee probate attorneys at Shepherd and Long, PC, by calling 865-383-3118.

What Assets Are Considered Part of an Estate?

The process of probate attempts to review the assets and debts a person holds at the time of their death, and to discharge the debts and distribute the assets. Assets that are typically considered part of an estate include:

  • Any real property the deceased person owns, such as houses, land, or commercial buildings.
  • Any funds held in the deceased person’s bank accounts, including savings accounts, checking accounts, and certificates of deposit (CDs).
  • Stocks, bonds, mutual funds, and other investment assets held in brokerage accounts or investment portfolios.
  • Assets held in retirement accounts, such as 401(k) plans, Individual Retirement Accounts (IRAs), and pensions, unless they have designated beneficiaries or are structured as payable-on-death (POD) or transfer-on-death (TOD) accounts.
  • Items of personal property owned by the deceased person, such as furniture, jewelry, artwork, collectibles, and vehicles.
  • Ownership interests in businesses, partnerships, or sole proprietorships owned by the deceased person.
  • Patents, copyrights, trademarks, or royalties associated with intellectual property owned by the deceased person.
  • Any debts owed to the deceased person, including loans, mortgages, or outstanding payments.

Assets held jointly with survivorship rights, in trusts, or with designated beneficiaries, often pass outside the probate process and may not be included in the estate. On the other hand, in a life insurance policy that did not designate a specific beneficiary, the policy proceeds may be considered part of the estate even though life insurance policies are typically paid directly to their beneficiaries. Seeking advice from an experienced estate planning attorney may help you to clarify probate requirements based on your situation and jurisdiction. Consider scheduling a consultation with Shepherd and Long, PC, to review your questions regarding probate.

What Assets Are Not Part of an Estate?

Some assets in which a deceased person has held an interest are not typically considered part of the individual’s estate for probate purposes. A few examples include:

Assets with Joint Ownership and Rights of Survivorship

Assets that are jointly owned are often held with rights of survivorship. A right of survivorship essentially means that if two or more people share ownership of an asset, and one of the owners passes away, that person’s share passes automatically to the remaining owner or owners, without going through probate. Joint bank accounts, jointly owned real estate, and jointly owned vehicles are all commonly held in this fashion.

Assets With Designated Beneficiaries

Certain assets, including some life insurance policies, retirement accounts such as 401(k) and IRA, payable-on-death (POD) or transfer-on-death (TOD) accounts, and some annuities, are typically designated to specific beneficiaries. These assets avoid probate and go directly to the beneficiaries named in their respective documents.

Trust Assets

When assets are transferred to a trust, like a revocable living trust, they are managed and distributed according to the trust document. According to Consumer Financial Protection Bureau, a revocable living trust gives a trustee the authority to make decisions about assets held in a trust while avoiding probate.


If assets were given as gifts or transferred legally to someone else before a person’s death, then those assets belong to their recipients. Assets that are already another individual’s sole property are not considered part of the decedent’s estate.

Certain Types of Property

Depending on local laws and regulations, certain property types may not be considered part of the estate. Common exclusions include retirement benefits and homestead exemptions, but other specific exemptions may be granted by law in some jurisdictions.

Certain Debts

When someone passes away, their debts usually fall under the responsibility of their estate. However, certain obligations may not be discharged from the value of the estate, depending on the type of debt and the laws in the area.

Which of the Following Items Will Pass Through Probate?

Probate is the legal means of distributing deceased people’s assets to their beneficiaries and settling their debts, according to the American Bar Association. However, not all assets are subject to probate. What assets go through probate? Some may pass directly to designated beneficiaries or joint owners outside the process. When someone passes away, their assets are distributed differently depending on how they were owned. If the deceased person solely owned an asset, it would usually go through probate. These assets include real estate, bank accounts, vehicles, personal belongings, and other valuable items.

Retirement accounts or life insurance policies that do not have designated beneficiaries or have the estate designated as the beneficiary may also need to go through probate. However, assets held in a trust, payable-on-death, or transfer-on-death accounts will pass directly to the designated beneficiaries. Additionally, assets that were transferred to others before the person’s death usually do not go through probate.

Does a 401k Go Through Probate?

If a 401(k) account has a designated beneficiary, it usually does not go through probate. A 401(k) is a retirement account sponsored by an employer that allows individuals to contribute a portion of their salary before taxes. When creating a 401(k) account, the account holder must name one or more beneficiaries who will receive the funds in the account upon their passing. The 401(k) plan administrator usually provides a beneficiary designation form for this purpose.

When the 401(k) account holder passes away, the designated beneficiary or beneficiaries will receive the assets directly, without going through the probate process. To claim the funds, the beneficiary must provide the necessary documents and information to the plan administrator. Regularly reviewing and updating beneficiary designations is crucial to ensure they reflect the account holder’s current wishes. However, if the designated beneficiary passes away before the account holder and no alternate beneficiaries are named, the account may need to go through the probate process to determine the distribution of the assets.

Discuss Your Assets With a Tennessee Estate Planning Attorney

Protecting assets is one of the most crucial elements of estate planning. Many individuals want to ensure their assets go to the appropriate beneficiaries. What assets go through probate? Not all assets have to go through probate when someone passes away. Understanding which assets are part of the estate and which are not can help individuals to make informed decisions about the structure of their estate plans. If you would like to learn more about the probate process or the transfer of assets in Tennessee, please consider scheduling a consultation with Shepherd and Long, PC, by calling 865-383-3118.