There is an important distinction between probate property (that is distributed through the probate court system) and other assets that are passed on to inheritors via other avenues. In some states, a deceased spouse's 50% share in any community property goes through probate unless the other spouse is registered as having a "right of survivorship" or "joint tenancy". Any asset held in the deceased person's name alone are usually subject to probate but this can vary depending on the jurisdiction and the value of the assets involved. Small estates are not always sent through the standard probate process; but there are still state laws that govern how the assets may be distributed.

A life insurance policy or retirement account that names a beneficiary is not considered as part of the estate for probate purposes. If such a policy or account does not name a beneficiary (or if the beneficiary has already died) these exemption rules do not apply. A trust can often be used to remove assets from consideration under probate. However, a testamentary trust that only becomes active at the time of death may not be exempt in this way. The total value of the property going through probate often determines the fees that must be paid for administering the estate. This is a good reason to do advance estate planning to allow as much property as possible to bypass probate.