In New York, an asset must go through probate when it is owned in the deceased person’s name alone, with no surviving co-owner and no valid beneficiary designation. Everything else — jointly owned property, accounts with named beneficiaries, life insurance, retirement plans, and assets held in a living trust — generally passes outside of probate and is delivered directly to the people entitled to it. Understanding which side of that line each asset falls on is the single most useful thing a family can know before they ever set foot in Surrogate’s Court.
I practice probate law in Brooklyn, and the question I hear most often, usually within the first ten minutes of a consultation, is some version of: “Do we even need to do this?” The honest answer is that it depends entirely on how the decedent’s property was titled. Two people can pass away with the exact same net worth, and one estate will sail through with a couple of small-estate forms while the other requires a full probate proceeding with a citation served on every distributee. The difference is almost never the size of the estate. It is the paperwork done — or not done — while the person was alive.
What probate actually is in New York
Probate is the court process by which a deceased person’s will is proven valid and an executor is given legal authority to act. In New York, that happens in the Surrogate’s Court of the county where the decedent lived — for my clients, usually Kings County Surrogate’s Court on Adams Street downtown. The court issues “letters testamentary,” which is the document banks and title companies actually want to see before they release anything.
If someone dies without a will, there is no will to probate. Instead, the estate goes through a closely related proceeding called administration under the Surrogate’s Court Procedure Act (SCPA), and the court issues “letters of administration” to an administrator. People use the word “probate” loosely to mean both, but the distinction matters: the rules for who inherits and who is entitled to serve are different. For an overview of how these proceedings differ from one another, Morgan Legal’s New York team has a helpful breakdown of the different types of probate in New York.
The key takeaway is this: probate (or administration) is only required for what we call the probate estate — the assets that were titled in the decedent’s sole name with no built-in transfer mechanism. The rest is the non-probate estate, and it moves on its own track.
Assets that must go through probate
If you find a bank statement, a stock certificate, or a deed with the decedent’s name on it and nobody else’s — and there is no payable-on-death instruction attached — you are almost certainly looking at a probate asset. The most common ones I see in Brooklyn estates are:
- Solely owned real estate. A house or a condo titled in the decedent’s name alone. This is the big one in Brooklyn, where a brownstone bought in the 1970s can dwarf every other asset combined.
- Individual bank and brokerage accounts with no joint owner and no “payable on death” (POD) or “transfer on death” (TOD) beneficiary.
- Stocks, bonds, and securities held in the decedent’s name without a beneficiary designation.
- Personal property of value — cars titled solely to the decedent, jewelry, art, collections, and the contents of the home.
- Business interests, such as shares in a closely held corporation or a member’s interest in an LLC, unless the operating agreement or a buy-sell arrangement directs otherwise.
- Money owed to the decedent, including unpaid wages, a tax refund, or a personal-injury or wrongful-death claim.
One nuance that trips families up: a beneficiary designation only works if it is valid and the named beneficiary is alive. If the only named beneficiary on a life insurance policy predeceased the insured and no contingent beneficiary was listed, the proceeds fall back into the probate estate. The label on the account is not the end of the inquiry; you have to confirm the designation still functions.
Assets that skip probate in New York
A surprising amount of wealth in a typical estate never touches the Surrogate’s Court. These non-probate assets transfer by operation of law or by contract the moment the owner dies:
- Jointly owned property with rights of survivorship. A bank account or home held as “joint tenants with right of survivorship,” or real estate a married couple owns as “tenants by the entirety,” passes automatically to the survivor. There is nothing for the court to do.
- Accounts with POD/TOD beneficiaries. A bank account marked “in trust for” a named person (a Totten trust) or a brokerage account with a transfer-on-death registration pays out directly to that person.
- Life insurance payable to a named living beneficiary.
- Retirement accounts — IRAs, 401(k)s, 403(b)s, and pensions — with valid beneficiary designations.
- Assets held in a revocable living trust. Property the decedent transferred into a trust during life is owned by the trust, not by the individual, so it bypasses probate entirely and is distributed by the successor trustee under the trust’s terms.
This is exactly why a well-drafted will is only part of the plan. A will governs only the probate estate. If a client has signed a beautiful will leaving everything “equally to my three children,” but every account already names one child as the POD beneficiary, the will is largely beside the point — those accounts go to that one child, full stop. Coordinating titling and beneficiary designations with the will is the part that prevents the bitter surprises I see in litigation.
The small-estate shortcut: SCPA Article 13
Not every probate asset triggers a full proceeding. New York provides a streamlined process called voluntary administration, or “small estate” administration, under SCPA Article 13. If the decedent’s personal property in their sole name is valued at $50,000 or less — not counting real estate, which is excluded from the calculation — a voluntary administrator can collect and distribute it by filing an affidavit rather than opening a full estate.
I steer eligible families toward this constantly. It is faster, dramatically cheaper, and far less intimidating than a formal proceeding. The catch is the real estate exclusion: a Brooklyn decedent with $20,000 in the bank and a solely owned home does not qualify, because the house still requires a full probate or administration proceeding to clear title. Article 13 handles the cash; it does nothing for the brownstone.
The spousal right of election: a claim that cuts across the line
Here is a principle that surprises even sophisticated clients. A surviving spouse in New York cannot simply be written out — not by a will, and not by clever titling. Under EPTL 5-1.1-A, the surviving spouse has a right of election to take a minimum share of the estate: the greater of $50,000 or one-third of the net estate.
What makes this provision powerful is that it reaches beyond the probate estate. The “net estate” for elective-share purposes includes certain testamentary substitutes — assets that would otherwise skip probate, such as Totten trusts, jointly held accounts, and gifts made in contemplation of death. In other words, you cannot defeat a spouse’s statutory share by moving everything into POD accounts and a joint deed. The statute pulls those assets back into the calculation. When a surviving spouse feels they have been shortchanged, this is frequently where probate litigation begins.
How guardianship complicates the probate picture
Much of my practice sits at the intersection of guardianship and probate, and the handoff between the two is where families most often get blindsided. When someone has spent their final years under a court-appointed Article 81 guardian, the guardian’s authority ends at death — but the work does not. The estate the guardian was managing now has to transition into a probate or administration proceeding, and any account titling, beneficiary changes, or asset sales the guardian made (or was prevented from making) directly shape what becomes a probate asset.
I have seen guardianship estates where a well-meaning guardian liquidated a home and parked the proceeds in a single guardianship account in the protected person’s sole name. That cash, which might have passed cleanly to a survivor had the home stayed titled in joint name, is now squarely a probate asset. These transitions also breed disputes — among heirs who disagreed with how the guardian acted, or who suspect that someone redirected assets while the decedent lacked capacity. Those fights frequently mature into will contests and estate litigation once the probate proceeding opens.
The planning documents that determine the outcome
The cleanest probate is the one a person engineers before death. A few New York instruments do most of the heavy lifting:
- A revocable living trust. Funded properly, it removes assets from the probate estate while leaving the grantor in full control during life. This is the most reliable way to keep a Brooklyn home out of Surrogate’s Court.
- The New York statutory durable power of attorney under GOL 5-1501. This lets a trusted agent manage finances during incapacity, often avoiding the need for a guardianship in the first place — and a guardianship avoided is a layer of probate complication avoided.
- A health care proxy, which appoints someone to make medical decisions. It has no effect on probate directly, but it keeps medical decision-making out of court and reduces the friction that later spills into estate disputes.
- Coordinated beneficiary designations on every retirement account, insurance policy, and bank account, reviewed against the will so the two never contradict each other.
A power of attorney and a health care proxy both expire at the moment of death — they are lifetime tools, not estate-transfer tools. People conflate them with the will all the time. Their value is in keeping a person out of guardianship and keeping their affairs orderly, which pays dividends when the estate eventually opens.
A practical way to sort your own assets
If you want a quick gut check on whether an estate will require probate, walk through each asset and ask two questions: Is there a surviving co-owner? and Is there a valid living beneficiary? If the answer to either is yes, that asset almost certainly skips probate. If the answer to both is no, it goes into the probate estate. Tally the no-no column, and you will know in a few minutes whether you are looking at a small-estate affidavit, a full proceeding, or — for a home titled solely to the decedent — a trip to Surrogate’s Court no matter what.
Families with property in more than one state face an extra wrinkle: real estate is probated where it sits. A Brooklyn resident who also owns a Florida condo may need an ancillary proceeding down south, which is why I coordinate with affiliated counsel handling Florida probate when an estate crosses state lines.
Every estate is different, and the titling details that decide everything are easy to misread. If you are sorting through a loved one’s assets — or planning your own to spare your family the courthouse — speak with a Brooklyn probate attorney before you make assumptions about what does and does not require court involvement. You can also read more about how we handle probate and estate administration for Brooklyn families.
Frequently asked questions
Does a will avoid probate in New York?
No. A will is the instrument that gets probated — it must be proven valid in Surrogate’s Court before the executor can act. A will controls only assets titled in the decedent’s sole name. To avoid probate, assets have to pass by joint ownership, beneficiary designation, or a funded living trust.
How much money can pass without full probate in New York?
Under SCPA Article 13, if the decedent’s solely owned personal property is $50,000 or less, the estate can be settled through voluntary (small-estate) administration with an affidavit. Real estate is excluded from that $50,000 calculation, so a solely owned home still requires a full proceeding.
Can a surviving spouse be disinherited in New York?
Generally no. EPTL 5-1.1-A gives a surviving spouse a right of election to claim the greater of $50,000 or one-third of the net estate, and that calculation reaches certain non-probate assets called testamentary substitutes, such as jointly held accounts and Totten trusts.
What happens to assets held in a guardianship when the protected person dies?
The guardian’s authority ends at death. Assets the guardian was managing must transition into a probate or administration proceeding, and how those assets were titled during the guardianship determines whether they fall into the probate estate. These transitions are a common source of estate disputes.
Do retirement accounts and life insurance go through probate?
Not if they name a valid, living beneficiary — they pass directly to that person outside of probate. They become probate assets only if no beneficiary is named, the beneficiary predeceased the owner with no contingent named, or the estate itself is the named beneficiary.
Frequently Asked Questions
Does a will avoid probate in New York?
No. A will is the instrument that gets probated — it must be proven valid in Surrogate’s Court before the executor can act, and it controls only assets titled in the decedent’s sole name. To avoid probate, assets have to pass by joint ownership, beneficiary designation, or a funded living trust.
How much money can pass without full probate in New York?
Under SCPA Article 13, if the decedent’s solely owned personal property is $50,000 or less, the estate can be settled through voluntary (small-estate) administration with an affidavit. Real estate is excluded from that $50,000 calculation, so a solely owned home still requires a full proceeding.
Can a surviving spouse be disinherited in New York?
Generally no. EPTL 5-1.1-A gives a surviving spouse a right of election to claim the greater of $50,000 or one-third of the net estate, and that calculation reaches certain non-probate assets called testamentary substitutes, such as jointly held accounts and Totten trusts.
What happens to assets held in a guardianship when the protected person dies?
The guardian’s authority ends at death. Assets the guardian was managing must transition into a probate or administration proceeding, and how those assets were titled during the guardianship determines whether they fall into the probate estate. These transitions are a common source of estate disputes.
Do retirement accounts and life insurance go through probate?
Not if they name a valid, living beneficiary — they pass directly to that person outside of probate. They become probate assets only if no beneficiary is named, the beneficiary predeceased the owner with no contingent named, or the estate itself is the named beneficiary.
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