I believe non-probate assets are specific gifts you call out -- in the
Will -- that are designated for specific beneficiaries. Little Jimmy
gets the old pair of lucky Yankees socks, Little Suzie gets the old,
decrepit, half-eaten turkey sandwich that Babe Ruth once took a bite
out of, etc.
This is incorrect. Every transfer arising from a will is a probate asset, because probate is the formal legal process of determining if there was a will, and if so, which will applies, and then distributing the assets of the person who died in accordance with that will (or with the determination that there was no will).
I'm guessing things like:
Life Insurance policies
Houses, land & real property ...could all be probate assets if one
does't specifically gift them to a Beneficiary?
A 401k/Roth IRA with a beneficiary designation (other than the owner's estate), a life insurance policy with a beneficiary designation (other than the owner's estate), a savings account or stock account or investment with a joint owner or a pay on death beneficiary (other than the owner's estate), or real property with a transfer on death beneficiary or a joint ownership with right of survivorship is a non-probate asset.
Any of those assets if there is no beneficiary designation, if there is no pay on death beneficiary, if there is no joint owner with right of survivorship, if it is not owner through a trust, and if there is a beneficiary designation that names the owner's estate, is a probate asset.
The General Rule
Anything subject to allocation and distribution in a will, or by intestate succession is a probate asset. Specifically devised property in a will is a probate asset.
A non-probate assets is something transferred pursuant to a beneficiary designation, pay on death provision, joint ownership with right of survivorship, tenancy by entireties, or provision in a trust existing prior to the death of the decedent. These assets are not dealt with through the probate court process.
However, if a will purports to specifically devise property that has a beneficiary designation or pay on death beneficiary or is owned by a trust or is in joint tenancy with right of survivorship, then the non-probate transfer prevails over the inconsistent language in the will.
Examples of Non-Probate Transfers Used in Estate Planning
The following are examples of non-probate transfers commonly used in
Passing property to beneficiaries through a living trust.
Leaving funds to a beneficiary named on a pay on death account or transfer on death account.
Leaving funds to a beneficiary named on a life insurance policy.
Leaving funds to a beneficiary named on an IRA, 401k or other retirement account. See financial planning.
Holding title to property as joint tenants or tenancy by the entirety.
Leaving motor vehicles to a transfer on death beneficiary.
Gifting assets to heirs during your lifetime so the assets do not pass as part of your estate.
Executing and recording a transfer on death deed naming a beneficiary to inherit your real estate.
The American Bar Association devotes a full chapter length treatment to discussing the difference. It begins:
Upon death, a decedent’s estate includes both probate and nonprobate
assets. Probate assets are those that pass to persons identified in a
will (see Chapter 3 for a discussion of wills), whereas nonprobate
assets pass outside an estate’s administration. Examples of
traditional nonprobate assets include qualified and nonqualified
retirement plans, individual retirement accounts, and life insurance
policies. However, nonprobate assets can also include certain checking
and savings accounts, certificates of deposit, investments, and even
real property, but only if a beneficiary is designated and state law
allows for such an asset to pass outside of an estate’s
administration. Nonprobate assets are frequently referred to as “will