A family in Brooklyn recently came to my office after their father passed away. He left a detailed will, which they believed made everything simple. But the brownstone he’d owned for 40 years was titled in his name alone. They were dismayed to learn that the will didn’t transfer the property—it only gave them the right to open a case in Kings County Surrogate’s Court to ask for that transfer. For the next nine to twelve months, the court, not the family, would control their father’s most significant asset.
This is probate. It’s the court-supervised process for authenticating a will, appointing an executor, and overseeing the distribution of assets titled solely in a decedent’s name. It isn’t inherently bad, but it is public, it takes time, and it costs money. The most deliberate estate planning is often focused on distinguishing which assets must pass through this process and which can be transferred to your family directly and privately.
The Probate Estate: What the Court Oversees
The core question is simple: how is an asset owned? If an asset is titled in the decedent’s name alone and has no designated beneficiary, it is part of the “probate estate.” The will controls the destiny of these assets, and the Surrogate’s Court provides the forum for executing the will’s instructions.
Common assets that fall into this category include:
- Real Estate Titled Individually: A house, co-op, or condominium held in one person’s name, like the Brooklyn brownstone, is a classic probate asset.
- Individual Bank and Brokerage Accounts: A checking account or a stock portfolio with no “Payable-on-Death” (POD) or “Transfer-on-Death” (TOD) designation becomes part of the probate estate.
- Personal Property: Tangible items like artwork, jewelry, or vehicles that are not jointly owned or held in a trust must be probated. Their value is appraised, and they are inventoried for the court.
- Interests in a Business: Stock in a closely-held corporation or an interest in an LLC, if owned by the decedent individually, will also be subject to court administration.
The executor you name in your will is responsible for gathering these assets, paying any outstanding debts and taxes, and then distributing what remains according to your wishes. But they can only do so with the court’s permission, granted through a document called Letters Testamentary.
Assets That Pass Outside of Probate
Effective estate planning is the act of creating legal structures that allow certain assets to bypass the Surrogate’s Court entirely. This provides privacy and gives your family more immediate access to the resources you’ve left for them. These “non-probate” assets transfer automatically by operation of law because their ownership structure already dictates who receives them.
The most common forms of non-probate assets are:
- Property Held in a Trust: This is the cornerstone of probate avoidance. When you transfer an asset—your home, an investment account—into a revocable or irrevocable trust, the trust owns it, not you. You control the trust as the trustee. Upon your passing, a successor trustee you’ve chosen steps in and distributes the assets according to the trust’s private instructions, with no court involvement.
- Assets with Beneficiary Designations: Retirement accounts like a 401(k) or an IRA, life insurance policies, and annuities pass directly to the beneficiaries you named on the account forms. These designations override any instructions in your will.
- Jointly Owned Property with Rights of Survivorship: In New York, when two or more people own property as “Joint Tenants with Rights of Survivorship” (JTWROS), the surviving owner automatically inherits the entire asset. This is common for married couples and their primary residence.
- Payable-on-Death (POD) and Transfer-on-Death (TOD) Accounts: These are simple beneficiary designations you can add to bank accounts (POD) and brokerage accounts (TOD). The funds transfer directly to the named person upon presentation of a death certificate.
A Will Directs Probate—It Doesn’t Avoid It
One of the most persistent misunderstandings I encounter is the belief that having a will allows your estate to avoid probate. The opposite is true: a will is your set of instructions for the probate court. It has no legal authority until it is admitted to probate by a Surrogate’s Court judge.
The process of validating that will is governed by the Surrogate’s Court Procedure Act (SCPA) Article 14. This statute outlines the requirements for proving the will is authentic, notifying all interested parties—like family members who might have been disinherited—and addressing any objections. A properly drafted and executed will makes this process smoother, but it does not eliminate it. Only careful stewardship of your asset titling can achieve that.
The work of legacy planning is not about drafting a single document. It’s about creating an intentional system where each asset is owned and titled in a way that reflects your goals for your family. For some assets, probate is perfectly acceptable. For others, the privacy, speed, and control afforded by a trust or beneficiary designation is far more prudent.
The key is to make that choice deliberately, not by default. When we understand which assets are subject to the court’s authority, we can take control of the process. That is the difference between an estate left to chance and a legacy left by design.
If you are unsure how your assets are titled, the first step is an inventory. Gather your deeds, account statements, and beneficiary forms. This review creates a clear picture of which assets would be subject to probate and forms the basis for a discussion about the structures available to protect your family’s inheritance.
