Do Life Insurance Policies Go Through Probate? A Lawyer Explains When They Do—and When They Don’t
Life insurance is designed to provide fast financial relief to surviving family members after a loved one’s death. But when families hear the word probate, they often panic—rightfully so. Probate can delay payments for months, expose assets to creditors, and spark disputes among heirs. It is no surprise that many beneficiaries ask:
“Does life insurance go through probate?”
The short answer is: usually no—but sometimes yes.
Several specific situations can force a life insurance payout into probate, and beneficiaries need to understand when that applies.
In this guide, our life insurance attorneys break down exactly when life insurance becomes a probate asset, how probate affects beneficiaries, and what to do if a payout is tied up in probate or being claimed by the wrong party.
If you need legal advice or your life insurance payout is stuck in probate, call (888) 510-2212 for a free consultation.
What Is Probate?
Probate is the legal process where a court:
validates a will
appoints an executor or administrator
inventories and values assets
pays debts and taxes
distributes what remains to the heirs or beneficiaries
If the decedent died without a will (“intestate”), the court appoints an administrator, and state law determines who receives the assets.
Probate involves:
Petitioning the probate court to open the estate
Assigning an executor or administrator
Notifying beneficiaries, heirs, and creditors
Collecting and valuing assets
Paying valid debts, taxes, and expenses
Distributing remaining assets
Closing the estate
It may sound straightforward, but probate typically takes months, sometimes over a year, and can be expensive. The good news: many assets bypass probate entirely, and life insurance is normally one of them.
Does Life Insurance Go Through Probate?
Most of the time, life insurance does not go through probate.
Generally, life insurance is a non-probate asset because it is paid directly to a designated beneficiary—not to the estate.
As long as:
✔ a beneficiary is named
✔ the beneficiary is alive
✔ the designation is valid
…the life insurance company must pay the beneficiary directly.
Life insurance proceeds bypass:
the will
the estate’s creditor claims
probate court delays
But several important exceptions can force the payout into probate.
Below are the most common situations.
When Life Insurance Does Go Through Probate
1. The Estate Is Named as the Beneficiary
If the policyowner named “my estate” as the beneficiary—intentionally or by mistake—the death benefit becomes estate property. This means:
It must go through probate
Creditors can claim part or all of it
Distribution depends on the will or intestacy law
This is one of the most common ways insurance proceeds end up in probate.
2. The Primary Beneficiary Died Before the Insured
If the primary beneficiary dies first and:
there are no other primary beneficiaries and
no contingent beneficiaries are named
…then the payout reverts to the estate.
To avoid this, policyowners should always list:
multiple primary beneficiaries
at least one contingent (secondary) beneficiary
3. All Beneficiaries Have Died
If every listed beneficiary predeceases the insured, one of two things happens:
The proceeds become part of the estate and go through probate
State intestacy laws determine the new beneficiaries (spouse, children, etc.)
In some states, if intestacy rules apply, the proceeds bypass probate and creditors cannot seize them. However, rules vary by jurisdiction, and many families end up in legal disputes over who the rightful beneficiary should be.
4. No Beneficiary Was Ever Named
If the policyowner never completed a beneficiary designation form, the policy behaves as if all beneficiaries died:
Proceeds may go to the estate
Or may be distributed to statutory heirs
Either scenario can lead to disputes or probate delays
This is one of the most preventable reasons life insurance gets stuck in probate.
5. The Beneficiary Is a Minor
Children under 18 cannot legally receive life insurance proceeds. When a minor is named without proper planning, the payout may:
go into probate
require a court-appointed guardian
be placed in a restricted account until age 18
This delays payment and can trigger costly legal proceedings.
To avoid this, policyowners often:
name a trust
establish a custodial account
designate a guardian ahead of time
6. Divorce Complications or Revocation Laws
Divorce adds complexity. Some states have laws that automatically revoke an ex-spouse as beneficiary unless the policyowner reaffirms them. If:
the ex-spouse is automatically removed
the insured failed to update beneficiaries
…the policy may have no valid beneficiary, forcing it into probate.
However—this is important:
ERISA overrides state divorce laws.
Employer-provided life insurance (group life insurance) is governed by federal law.
Under ERISA, the named beneficiary must receive the payout—even if it’s an ex-spouse.
This regularly creates conflicts between state family law and federal ERISA rules.
What Life Insurance Policies Require Probate?
There is no special type of policy (term, whole, AD&D, etc.) that automatically requires probate. Any policy can end up in probate if:
the estate is the beneficiary
the beneficiary has died
no beneficiary is listed
a minor is the only beneficiary
a divorce revocation statute applies
Do Life Insurance Trusts Go Through Probate?
No.
If a trust is named as the beneficiary, the payout goes directly to the trust—not the estate—and does not pass through probate.
This is especially helpful when:
beneficiaries are minors
the insured wants controlled or staged distributions
creditor protection is needed
avoiding family disputes is a priority
Trust payouts are typically received within weeks, not months.
What Happens if Life Insurance Goes Into Probate?
When a payout becomes part of the estate:
The insurer issues the check payable to the estate
The executor deposits it into an estate account
Creditors may claim part of the money
Remaining funds are distributed under the will or state law
Beneficiaries may receive far less
Probate delays the distribution
This is why planning beneficiary designations correctly is so important.
How Long Does Life Insurance Stay in Probate?
Probate can last:
3–6 months for small estates
9–18 months for average estates
1–2+ years for complex estates or disputes
During this time, beneficiaries cannot access the money.
Can Probate Be Avoided?
Yes—planning is key. Policyowners should:
Always list at least one contingent beneficiary
Update designations after major life events (marriage, divorce, birth, death)
Avoid naming the estate as beneficiary
Use a trust if a minor child is involved
Review employer policies after job changes
Never rely on a will to change a life insurance beneficiary
Life insurance beneficiary changes must be made on the policy, not in the will.
How Our Life Insurance Lawyers Can Help
If your life insurance payout is being routed through probate—or someone is challenging your right to the benefit—you should speak with a life insurance attorney immediately.
Our lawyers help beneficiaries:
determine whether probate is required
challenge improper estate claims
fight competing beneficiary disputes
handle ERISA-controlled employer policies
overturn wrongful denials
recover delayed or withheld death benefits
We work on a contingency fee basis: You pay nothing unless we recover your money.
Call (888) 510-2212 for a free case evaluation.
