Also known as: nonprobate transfer · non-probate transfer · non-probate transfers
Written by attorneys · grounded in primary & secondary sources — see below
A transfer of property that takes effect at the owner's death by operation of law or contract. The arrangement shifts possession or enjoyment to a designated recipient without court-supervised probate administration.
Nolan Nunez and Natalie Norris held a joint brokerage account as co-owners. Nolan died first. The probate court values Nolan's interest immediately before death under the applicable statute to determine the augmented estate for Natalie's elective share. The valuation accounts for Nolan predeceasing Natalie and excludes certain insurance proceeds that would have been treated differently if Natalie had died first.
After Nigel Nelson's death his siblings claimed his IRA passed outside probate under a beneficiary designation and was therefore unreachable by his surviving spouse. The court examined whether the account qualified as a nonprobate transfer under state law and held that the spouse could still reach the asset to protect marital rights despite the beneficiary form.
Select any source to read its text and confirm it supports the definition.
Nonprobate transfers are included in the augmented estate so the surviving spouse can reach them when calculating the elective share amount. The statute adds the value of the decedent's nonprobate transfers to others and to the spouse, then credits the spouse with certain assets already received.
Supporting sources
Yes. A beneficiary designation on an IRA constitutes a nonprobate transfer because the asset passes by operation of law to the named beneficiary at death. Courts have rejected arguments that such accounts escape spousal recovery simply because they avoid probate.
Supporting sources
Under the Uniform Probate Code a transferee of a nonprobate transfer may be liable to the probate estate for allowed claims when the estate is insufficient. Liability is limited to the value of the property received by that transferee.
Supporting sources
No. Will substitutes such as revocable trusts, life insurance, POD accounts, and joint ownership with right of survivorship need not comply with the statutory formalities required for wills because they serve the same donative function but operate outside probate.
Supporting sources
…The court further concluded, “[Tyson Hall’s elective] share cannot be satisfied without including the value of the decedent’s non-probate transfers to others pursuant to N.D.C.C. § 35.1-05-02. As a result, [Tyson Hall] is entitled to the homestead in its entirety including any share of the joint tenant, Brianna McLaen . . . .” [¶19]…