When a parent in Brooklyn passes away, their adult children often believe that the will is the final word. They assume they can use it to immediately access their father’s bank account or sell his home. They soon discover a difficult truth: the house, the checking account, and the stock portfolio titled solely in his name now belong to the Kings County Surrogate’s Court. An executor must be formally appointed by a judge before a single asset can be touched. This court-supervised process is called probate, and it’s the default path for many estates in New York.
For over two decades, I have worked with families who are surprised by this reality. The core of the issue isn’t the will itself, but how the assets were owned. A will is a set of instructions for the court, but it doesn’t magically transfer title. Understanding which assets fall under the court’s jurisdiction—and which do not—is the first step in creating a plan that serves your family instead of the court system.
The Default Path: Assets Subject to Probate
Probate is the legal process of validating a will, appointing an executor, and overseeing the distribution of a person’s property after death. An asset’s title is the key factor that determines if it must go through this process. If an asset is owned solely by the decedent with no other legal mechanism for transfer, it is a probate asset. The court must step in to grant someone—the executor—the legal authority to take control.
In our practice, we see the same types of assets trigger probate time and again:
- Real Estate Titled in One Name: A house, co-op, or condominium owned individually is the most common probate asset. Without a surviving joint owner or a trust, no one has the authority to sign a deed or transfer ownership. The executor appointed by the Surrogate’s Court is the only person who can legally manage or sell the property.
- Individual Bank and Brokerage Accounts: A checking, savings, or investment account held in the decedent’s name alone, without a “Payable-on-Death” (POD) or “Transfer-on-Death” (TOD) designation, becomes frozen upon death. The bank will not release the funds to anyone, not even a spouse or child named in the will, without official court documents called Letters Testamentary.
- Personal Property: This category includes everything from vehicles and jewelry to art and furniture. While items of sentimental or low monetary value are often distributed informally, significant assets must be accounted for by the executor. They are part of the estate’s value and may need to be appraised and sold to satisfy debts or be distributed according to the will.
- Checks Made Out to the Decedent: Any income or refunds received after death, such as a final paycheck or a tax refund, must be deposited into an estate account. Only a court-appointed executor can open such an account.
New York law dictates this process. For instance, the formal petition to have a will admitted to probate and an executor appointed is governed by the rules in Article 14 of the Surrogate’s Court Procedure Act (SCPA). It is a detailed and often lengthy procedure that underscores the court’s role as the ultimate arbiter of these assets.
Bypassing the Court: Non-Probate Assets
The goal of deliberate estate planning is not necessarily to avoid probate at all costs, but to control which assets are subject to it. Certain assets are structured to pass directly to a new owner by operation of law, completely outside the will and the court’s authority. This is not a loophole; it is transfer by design.
These non-probate transfers happen in three primary ways:
By Contract
Many financial instruments are essentially contracts between the owner and an institution. You agree on who should receive the asset upon your death when you open the account.
- Life Insurance Policies: The death benefit is paid directly to the beneficiaries you named in the policy. The will has no control over it.
- Retirement Accounts: Funds in a 401(k), IRA, 403(b), or other retirement plan pass directly to the designated beneficiaries. This is a powerful tool, but one that requires regular review to ensure the beneficiaries are up to date.
By Title
How you hold title to property can build an automatic transfer mechanism directly into the ownership document.
- Jointly Owned Property with Right of Survivorship: In New York, this is common for married couples owning a home as “tenants by the entirety.” When one spouse dies, the other automatically becomes the sole owner. No probate is necessary. This also applies to bank or brokerage accounts titled as “Joint Tenants with Rights of Survivorship” (JTWROS).
- 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). Upon your death, the named beneficiary can claim the funds directly from the institution with a death certificate and identification, bypassing probate entirely.
By Trust
This is the most flexible and versatile method for avoiding probate. When you create a revocable living trust, you transfer the title of your assets—your house, your investment accounts—from your individual name into the name of the trust. You still control the assets as the trustee during your lifetime. Upon your death, a successor trustee you appointed steps in to manage and distribute the assets according to the instructions in the trust document. Because the trust—not you—owns the property, there is nothing to probate. The transfer is private, efficient, and managed outside of court.
Intentional Stewardship
Probate is not inherently bad, but it is public, can be time-consuming, and often adds expense and stress to a family already grieving. The difference between an estate that settles smoothly and one that is mired in court for months is rarely the will itself. It is the careful, intentional structuring of assets during one’s lifetime.
A productive first step is to inventory your major assets—your home, financial accounts, and insurance policies. Once you have that list, we can schedule a review to identify which of those assets are currently exposed to probate and discuss the appropriate ownership structures to ensure your legacy passes to your family with clarity and purpose.
