A son recently came to my office with his late mother’s will. He was the named executor, ready to probate her Manhattan apartment and investment accounts. But the paperwork told a different story. The apartment deed listed him and his mother as “joint tenants with right of survivorship.” The investment accounts had a “Transfer on Death” designation naming him directly. His mother’s will, it turned out, controlled almost none of her property. This was a surprise to him—but a common reality in our practice.
The belief that a will controls everything is a persistent myth. In New York, probate—the court process for validating a will—only applies to assets titled in the decedent’s name alone. Many valuable assets pass to heirs entirely outside the Surrogate’s Court. This is not an accident. It is the result of deliberate titling and contractual agreements that legally supersede the instructions in a will.
Assets That Pass by Title and Contract
The most common ways to avoid probate are built directly into an asset’s ownership structure or a contract with a financial institution. These methods create a direct, legally binding path for an asset to a new owner upon death.
First is joint ownership. When property is owned as “Joint Tenants with Rights of Survivorship” (JTWROS), the surviving owner automatically inherits the entire asset. The property interest of the deceased owner is extinguished, and the survivor becomes the sole owner by operation of law. No court action is needed. The deed or account agreement is the controlling document, not the will.
Equally powerful are beneficiary designations. Life insurance policies, 401(k)s, IRAs, and annuities all operate on this principle. When you open these accounts, you name a beneficiary—a contractual agreement. Upon your death, the financial institution is obligated to pay the proceeds directly to that person. These funds are not part of your probate estate. Similar tools, known as “Payable on Death” (POD) or “Transfer on Death” (TOD) accounts, allow you to do the same with standard bank and brokerage accounts, transferring liquid assets without court involvement.
Using a Trust for Greater Control
While titling and beneficiary designations are effective, they offer little control. A revocable living trust provides a way to bypass probate while maintaining stewardship over how and when your legacy is distributed. When you create and fund a living trust, you retitle your chosen assets—your home, investments, business interests—into the name of the trust. You remain the initial trustee, retaining full control during your lifetime.
Upon your death, these assets belong to the trust, not to you. Therefore, they are not subject to probate. A successor trustee you appointed steps in to manage and distribute the assets according to the detailed instructions you left in the trust document. This process is private, efficient, and allows for far more nuance than a simple outright transfer. You can specify that a child receives their inheritance at a certain age, protect it from creditors, or manage it for a beneficiary with special needs. This is intentional estate planning.
The Exception for Small Estates
The New York legislature recognizes that a full probate process is not always necessary for modest estates. The law provides a simplified procedure known as a “Voluntary Administration” or “small estate proceeding.”
Under Article 13 of the Surrogate’s Court Procedure Act (SCPA), if a person dies with personal property valued at $50,000 or less, the family can use this expedited process. The person named as executor in the will—or the closest heir if there is no will—can file a simple affidavit with the Surrogate’s Court. This allows them to collect the decedent’s assets, pay debts, and distribute the remainder to the rightful heirs without the time and expense of formal probate.
This isn’t a complete avoidance of the court, but a significant simplification. It is a prudent measure by the state, but it is not a substitute for proper planning for larger estates.
Understanding which assets will and will not pass through probate is the foundation of effective legacy planning. A will is a critical document, but it is only one piece of a much larger picture. The titles on your deeds and the beneficiaries on your accounts can have a far greater impact on where your property ultimately goes.
A prudent first step is an inventory of your significant assets: real estate, bank accounts, retirement funds, and insurance policies. From there, we review how each is titled and who is named as beneficiary. This process identifies exactly what your will controls—and what passes outside of it.
