Not everything you own is automatically subject to probate. Generally, assets titled solely in your name, like a bank or investment account, your home or other real estate, or a vehicle, must pass through the probate court to remove your name and retitle the property to your heirs. By contrast, many assets can transfer outside probate: jointly owned property with a right of survivorship passes to the survivor, accounts and policies with valid beneficiary designations pay directly to the named beneficiaries, and assets properly titled in a revocable living trust are administered by your trustee without court supervision.
Beware of common traps. Joint ownership only avoids probate at the first death, if the survivor dies without adding a new co‑owner, or if both owners die together, the asset will still require probate. Survivorship can unintentionally disinherit children from a prior marriage. “Tenants‑in‑common” ownership lets you control who inherits your share, but that share must go through probate. Beneficiary designations can also fail, if a beneficiary predeceases you, is incapacitated, or if you name “my estate” or a minor child, the funds may end up in probate or under a court‑supervised guardianship. Finally, only assets actually in your living trust avoid probate. A “testamentary” trust created by a will does not, and any assets left outside your living trust typically must be probated before they can be moved under your trust’s terms.
The bottom line: title and beneficiary choices drive whether an asset goes through probate. A coordinated plan, using appropriate joint ownership, up‑to‑date beneficiary designations, and a properly funded living trust can keep more of your estate out of court and in the hands of the people you choose, more quickly and privately.
If you would like to learn more, or set up a complimentary estate planning consultation with one of our Madison, Wisconsin estate planning attorneys, please contact us and we can schedule a time to meet.