A son calls me from his mother’s home in Brooklyn. She has just passed away, and he is her nominated executor. He’s heard stories from friends about probate—the court process for validating a will—taking months, even years. “Can I start clearing things out?” he asks. “She has antiques, some jewelry, a car. I’d like to sell what we don’t want and give some things to my sister to simplify the process.”
It’s a logical question. But it’s based on a fundamental misunderstanding of how an estate is legally settled in New York. The impulse to “get rid of things” before probate is premature. It can create significant legal and financial complications for the very person trying to do the right thing.
The real question isn’t what you can dispose of after death, but what can be structured to pass to your family *outside* of the probate process altogether. The work is done before, not after.
Probate vs. Non-Probate Assets: The Core Distinction
When a person passes away, their property is divided into two categories: probate assets and non-probate assets. This division dictates the entire estate administration process.
Probate assets are those titled solely in the decedent’s name without a named beneficiary. This includes a bank account with only their name on it, a car titled to them alone, or a house where they were the only owner on the deed. These assets are effectively frozen at death. They belong to “the estate,” a legal entity that comes into existence at that moment. To access, manage, or distribute these assets, the executor named in the will must petition the Surrogate’s Court to be formally appointed.
Only after the court issues a document—called Letters Testamentary—does the executor have the legal authority to act. Until then, no one has the right to sell the car, empty the bank account, or give away the jewelry.
Non-probate assets, on the other hand, are designed to bypass the court process entirely. They pass directly to a designated person by operation of law. This is where prudent planning creates a different outcome.
How Assets Pass Outside of Surrogate’s Court
For most families I work with, the goal is to maximize what can be transferred directly and privately, leaving only residual assets to pass through a will and the probate process. This is achieved through deliberate titling and beneficiary designations. There are three primary mechanisms for this.
1. Beneficiary Designations
This is the simplest method. Many financial accounts allow you to name a direct beneficiary. Upon your death, the beneficiary presents a death certificate to the financial institution and the funds are transferred—no court, no lawyers, no delay. Common examples include:
- Life Insurance Policies: The death benefit is paid directly to the named beneficiary.
- Retirement Accounts: Funds in an IRA, 401(k), 403(b), or other retirement plan pass to the person designated on the account’s beneficiary form.
- Payable-on-Death (POD) or Transfer-on-Death (TOD) Accounts: Many bank and brokerage accounts can be set up with POD or TOD designations, which function just like a life insurance policy for that specific account.
A word of caution: these designations supersede your will. If your will says your daughter inherits everything, but your IRA from 20 years ago still names your ex-spouse as the beneficiary, the IRA goes to your ex-spouse. An annual review of beneficiary forms is a critical part of estate stewardship.
2. Joint Ownership with Right of Survivorship
When property is owned by two or more people as “Joint Tenants with Right of Survivorship” (JTWROS), the surviving owner automatically inherits the entire asset. This is common for real estate between spouses and for joint bank accounts. When one owner dies, the other becomes the sole owner instantly. The asset does not enter the deceased’s probate estate.
This can be a useful tool, but it’s a blunt instrument. Adding a child as a joint owner on your Manhattan apartment to avoid probate also makes them a current owner. This can expose the property to their creditors, marital disputes, or other financial liabilities.
3. Assets Held in a Trust
A trust is a legal entity you create to hold title to your assets. You transfer ownership of your home, brokerage accounts, and other property from your individual name into the name of the trust. You appoint a trustee—often yourself, initially—to manage the assets for the benefit of your beneficiaries.
Since the assets are owned by the trust, not by you personally, there is nothing to probate when you pass away. The successor trustee you named simply steps in and distributes the assets according to the rules you laid out in the trust document. This process is private, efficient, and allows for far more control and contingency planning than a simple will.
The Executor’s Authority and Fiduciary Duty
Let’s return to the son in his mother’s Brooklyn home. If he were to sell his mother’s car or give away her jewelry before the Surrogate’s Court grants him Letters Testamentary, he would be acting without legal authority. This is known as “intermeddling with assets.” If an asset is lost, damaged, or sold for less than its value, he could be held personally liable to the estate’s beneficiaries or creditors.
An executor’s power is not derived from the will itself, but from the court that validates the will. Under Article 7 of New York’s Surrogate’s Court Procedure Act (SCPA), the court grants this power through official letters. This appointment carries with it a high legal standard known as a fiduciary duty—a duty to act with undivided loyalty to the estate and its beneficiaries. Acting responsibly means first securing legal authority and then marshalling and protecting all assets, not disposing of them prematurely.
The time for “getting rid of” assets is during your lifetime, through intentional and deliberate estate planning. By carefully structuring how your assets are titled and who is named as a beneficiary, you can ensure your legacy passes to the next generation with clarity and efficiency.
If you are responsible for settling a loved one’s estate or are considering how to best structure your own, the first step is to create a clear inventory of all assets. Document how each is titled and confirm all beneficiary designations are current. My firm can guide you through this asset review to distinguish what is subject to probate and what is not. This process establishes a clear path forward.
