A client’s father passed away in his Brooklyn home. The family, after a difficult week, found his will tucked away in a safe deposit box. They called me, relieved. “We found it,” the son said. “So we don’t have to go to court, right?”
I hear this often. It’s a common and understandable belief—that a will is a magic document that sidesteps the court system entirely. But in New York, the opposite is true. A will is not a way to avoid court. It’s an instruction manual for the court.
The process of validating that will and officially appointing the executor to carry out its instructions is called probate. It’s a court-supervised process designed to ensure a person’s final wishes are honored, their debts are paid, and their assets are distributed correctly. Over the years, I’ve seen families approach this process with anxiety, largely fueled by a few persistent myths.
The Will Isn’t Automatic
The most fundamental misunderstanding is that a will is self-executing. It is not. After a person dies, their will must be submitted to the Surrogate’s Court in the county where they lived. The court’s first job is to confirm the will is legally valid—was it signed correctly, properly witnessed, and created by someone of sound mind?
Only after the court issues a decree admitting the will to probate and formally appoints the nominated executor does that person have any legal authority. The document they receive, called Letters Testamentary, is the proof an executor needs to show a bank, a brokerage firm, or a real estate agent that they are now the fiduciary in charge of the estate’s assets. Without it, the will is just a piece of paper expressing intent.
Not Every Asset Is Subject to Probate
Another common myth is that every asset a person owned must pass through probate. This is not the case. Many assets can, and should, be structured to pass directly to heirs without court intervention. This is a core part of intentional estate planning.
Assets that typically bypass probate include:
- Assets with a named beneficiary: Life insurance policies, 401(k)s, IRAs, and certain bank accounts are paid directly to the person you designated. This is a contract, and it supersedes the will.
- Assets held in a trust: Property, bank accounts, and investments held in a properly funded revocable or irrevocable trust are controlled by the trustee, not the probate court. The trust document dictates what happens to them.
- Property owned jointly with rights of survivorship: A home or bank account owned by a married couple as “tenants by the entirety” or by others as “joint tenants with rights of survivorship” automatically passes to the surviving owner.
Even for estates with assets that must go through probate, New York law provides a simplified path for smaller estates. Under Surrogate’s Court Procedure Act (SCPA) Article 13, estates valued at less than $50,000 can use a simple “Voluntary Administration” procedure, which is much faster and less expensive than a full probate proceeding.
Probate Is Not an Inevitable Family War
Television and movies love the drama of a will reading that erupts into a family feud. While will contests do happen, they are the exception, not the rule. Most probate proceedings are administrative, not adversarial. They are the legal process for settling an estate.
For a will to be challenged successfully in New York, an objectant—typically a close relative who would inherit more if the will were invalidated—must prove specific grounds. These might include that the person signing the will lacked mental capacity, was under undue influence, or that the will was improperly executed. These are high legal bars to clear.
A clearly written, professionally executed will is the strongest defense against such challenges. When a person’s intentions are unambiguous and the legal formalities are observed, the grounds for a contest shrink dramatically. The goal of good planning is to leave behind clarity, not a legacy of conflict.
The True Drivers of Cost and Delay
Finally, there’s the fear that probate is always ruinously expensive and will drag on for years. The truth is more nuanced. The cost and timeline of probate are driven by three main factors: the complexity of the assets, the clarity of the plan, and the cooperation of the family.
A simple estate with a clear will, a cooperative executor, and straightforward assets can often be probated in well under a year. What causes delays and drives up costs? Things like tracking down unknown heirs, selling a business, dealing with creditor claims, or—most of all—infighting among beneficiaries. The process itself isn’t inherently slow; external complications create friction.
This is where stewardship comes in. The work we do before a person passes away is designed to remove as much of that friction as possible. By organizing assets, clarifying wishes, and anticipating potential conflicts, we create a clear path for the executor and the court to follow. It is an act of consideration for the family you leave behind.
If you are named as an executor in a will or are considering the stewardship of your own legacy, the first step is often the most practical. I suggest you begin by creating a simple inventory of major assets to determine which might be subject to probate. Our firm can then schedule a review of this inventory to provide a clearer picture of what your family’s experience with the court might look like.
