Probate is a process that allows the court system to oversee management of a deceased person’s assets to ensure all debts are paid before the worth of the estate is distributed to any heirs listed in the will. This may be necessary whether a will exists or not. Although probate law varies depending on the state, there are many common aspects between jurisdictions.

If the deceased has not left a will, the estate automatically goes into probate except for:

  1. Assets that are jointly owned will go to the second owner entirely.
  2. A named beneficiary will retain assets like retirement or bank accounts.
  3. Trust accounts will also be left with the named beneficiaries.

What is usually subject to probate?

Probate is necessary for assets like:

  • Property owned as “tenants in common”, aka a percentage of ownership on property owned as an investment.
  • Assets owned solely by the deceased person that was not left to any beneficiaries. (ex: house, car, boat)

If there is a will, and an executor is not named, the probate court will appoint someone to manage the deceased’s estate. The appointed executor will distribute assets and file the appropriate documents to complete probate. They can also accept a portion of the estate’s proceeds to pay for their activities managing the estate.

What is safe from the probate process?

Joint assets are mentioned above as one category of assets that do not go through a probate process regardless if the deceased left a will. This includes any property or items owned by both the deceased and their spouse.

Although each case is different, here are some assets that commonly avoid probate processes:

  • property held in a living trust
  • An award from life insurance policies. Rarely this could be up for probate if the estate is the beneficiary.
  • A retirement account naming a beneficiary
  • Co-owned savings bonds.
  • Jointly-owned property; especially if there is joint tenancy and right of survivorship.
  • Any commissions, salary or wages due to the deceased earned before death.
  • Household goods.
  • Co owned vehicles or boats that are registered in transfer- on- death forms.

There are simplified probate procedures offered for estates of smaller value as well called summary probate. You will need to consult an estate planning attorney about how to avoid probate before you pass.

Assets that aren’t protected by a will or trust are very likely to go through probate. Your best chance to avoid your assets going through the process is to hire an estate planning or probate lawyer, like a skilled Peoria IL probate attorney, to help you appoint an executor, distribute assets to heirs and create a will or living trust to protect your assets after death.


Thanks to authors at Smith & Weer P.C. for their insight into Probate law.