The most effective ways to avoid probate in New York are a properly funded revocable living trust, up-to-date beneficiary designations on all financial accounts, and correctly titled jointly owned property. Which tools make sense depends on the size of your estate, how your assets are currently titled, and whether you own real estate or a business.
Most New York families do not find out how long and expensive probate can be until they are already in the middle of it. The good news is that with the right plan in place, many families can avoid the probate process entirely or reduce it to something much more manageable.
This guide, put together by the estate planning attorneys at Seligson Law, walks you through every legitimate legal tool available to New York residents who want their assets to reach their family quickly, privately, and without unnecessary court involvement after they die.
What Is Probate and Why Do So Many People Want to Avoid It?
Probate is the legal process a court uses to verify a deceased person’s will, settle their debts, and distribute what is left to their beneficiaries. In New York, that process runs through the Surrogate’s Court, a specialized court that exists in each of the state’s 62 counties and deals exclusively with estates, trusts, and guardianships.
Here is what probate actually looks like for a typical New York family:
- Filing a petition with the Surrogate’s Court in the county where the deceased lived
- Notifying all heirs, beneficiaries, and creditors
- Having the court validate the will and appoint an executor
- Paying any outstanding debts and taxes before any assets are distributed
- Waiting for the court to approve the final accounting before anything goes to the family
Depending on the size and complexity of your estate, this process can take anywhere from several months to several years. Court and attorney fees can run into the thousands. And because probate records are public, anyone can look up what your estate was worth and who received what. For many families, that is reason enough to plan around it.
The team at Seligson Law, led by Ken Seligson, helps New York residents build estate plans that keep as many assets as possible out of probate from day one.
The Most Effective Ways to Avoid Probate in New York
Set up a revocable living trust
A revocable living trust is the most comprehensive probate-avoidance tool available to New York residents. When you place assets into a trust, those assets are no longer owned by you individually, but rather by the trust. When you die, the trustee you named distributes them directly to your beneficiaries according to the trust’s terms, with no court involvement required.
The key word is “funded.” A trust that exists on paper but does not actually hold your assets does nothing to avoid probate. Every account, property, and asset you want protected needs to be formally transferred into the trust’s name. An attorney can help you make sure that step is done correctly.
Benefits of a revocable living trust include:
- Assets transfer to your family immediately, without waiting for court approval
- The process is private, which means trust distributions are not public record
- You stay in full control of the trust and its assets while you are alive
- You can change or revoke it at any time
- It can hold assets across multiple states, avoiding out-of-state probate proceedings
Name beneficiaries on financial accounts
This is the simplest probate-avoidance tool available. Any account with a named beneficiary passes directly to that person at your death, completely outside of probate. No court, no waiting, no fees.
Under EPTL Sections 13-4.1 through 13-4.12, New York allows transfer-on-death (TOD) registration for securities and brokerage accounts. New York also allows payable-on-death (POD) designations on bank accounts. To avoid probate as much as possible, you need to make sure these are in place on:
- Savings and checking accounts
- Certificates of deposit
- Brokerage and investment accounts
- Retirement accounts including IRAs and 401(k)s
- Life insurance policies
Review these regularly. An outdated or missing beneficiary designation can send an asset straight into probate even if the rest of your plan is airtight.
Hold property jointly with right of survivorship
In New York, certain forms of joint ownership allow property to pass automatically to the surviving owner when one owner dies, with no probate required. Under EPTL Section 6-2.2, the two forms that carry a right of survivorship are:
- Joint tenancy with right of survivorship (JTWROS): When one owner dies, their share passes immediately and automatically to the surviving owner. This works for real estate, bank accounts, and investment accounts. Each owner must hold an equal share, and the deed or account documentation must clearly state that it is a joint tenancy. Otherwise, New York law may treat it as a tenancy in common, which does not avoid probate.
- Tenancy by the entirety: This is joint ownership reserved exclusively for married couples in New York, and it applies to real estate only. It carries the same right of survivorship as a joint tenancy, but with an added layer of protection: neither spouse can transfer or mortgage their interest without the other’s consent, and a creditor of one spouse alone cannot place a lien on the property.
One important note: joint tenancy works well for couples but can create complications for families with children from prior relationships or co-owners who are not spouses. An attorney can help you decide whether this approach fits your broader plan.
Update beneficiary designations after divorce
Under EPTL Section 5-1.4, New York automatically cancels a former spouse’s beneficiary status on most account types when a divorce is finalized.
However, federal law governs employer-sponsored retirement plans like 401(k)s and can override the state rule, meaning an outdated designation on a workplace plan may still hold even after your divorce.
Ultimately, you simply cannot rely on the law to clean this up automatically. You need to update every designation yourself.
New York’s small estate procedure (for estates worth less than $50K)
If an estate consists of $50,000 or less in personal property, New York offers a simplified process called Voluntary Administration. Instead of full probate, an eligible family member or executor can file a simple affidavit with the Surrogate’s Court and collect the assets without a lengthy court proceeding. The filing fee is $1.
This option is not available if the deceased owned real property in their own name. In that case, full probate is required regardless of the estate’s overall value. But for small estates made up entirely of personal property, it can significantly reduce the burden on your family.
What Probate Cannot Be Avoided in New York
Not everything can bypass probate, and it is worth being clear-eyed about the limits. Assets that typically must go through probate include:
- Real estate titled solely in the deceased person’s name with no right of survivorship
- Bank or investment accounts with no named beneficiary and no joint owner
- Personal property such as vehicles, jewelry, or collectibles owned individually
- Any asset the deceased owned alone that was never transferred into a trust
This is why a trust needs to be properly funded, beneficiary designations need to be current, and jointly held property needs to be correctly titled. A plan with gaps in any of these areas may still send assets through probate even if the intent was to avoid it.
Ken Seligson and the team at Seligson Law regularly review existing estate plans to identify exactly these kinds of gaps and close them before they become a problem for your family.
New York Families Who Plan Ahead Avoid Probate. Here Is Where to Start.
Avoiding probate in New York is not about finding a loophole. It is about using the legal tools that already exist, including trusts, beneficiary designations, joint ownership, and proper account titling, to make sure your family gets what you intended without the delay, cost, and public exposure of a court proceeding.
Seligson Law helps individuals, families, and business owners across New York build estate plans that are thorough, legally sound, and built to hold up.
Whether you are starting from scratch or reviewing an existing plan, our firm is ready to help you move forward with confidence. Contact Seligson Law to schedule your New York estate planning consultation now.
Frequently Asked Questions About Avoiding Probate in New York
1. Does a will avoid probate in New York?
No. A will actually goes through probate. It is the document the court uses to verify your wishes and supervise the distribution of your estate. If avoiding probate is a goal, a revocable living trust is a more effective tool. Here is some important information comparing a will versus a trust.
2. What assets are not subject to probate in New York?
Assets that pass outside of probate include anything held in a trust, accounts with named beneficiaries such as life insurance and retirement accounts, jointly owned property with a right of survivorship, and payable-on-death or transfer-on-death accounts. Only assets titled in the deceased person’s name alone, with no beneficiary and no joint owner, typically go through probate.
3. How long does probate take in New York?
It depends on the size and complexity of the estate. A straightforward, uncontested probate in New York could take six months to a year. Larger or more complicated estates, or those involving disputes among heirs, can take considerably longer. Avoiding probate through a trust or proper account titling sidesteps that timeline entirely.
4. Is probate expensive in New York?
It can be. Executor fees, attorney fees, court filing fees, and appraisal costs can add up quickly and are typically paid out of the estate before beneficiaries receive anything. For larger estates, these costs can run into tens of thousands of dollars. A trust that has been properly set up and funded with your assets avoids most of these expenses.
5. Can I avoid probate for my house in New York?
Yes, in most cases. The most common ways to do it are to place the property into a revocable living trust, hold it jointly with right of survivorship, or, for married couples, hold it as tenants by the entirety. Each approach has different implications for taxes, creditor protection, and control.
6. What is New York’s small estate procedure?
New York allows estates with $50,000 or less in personal property to skip full probate through a simplified process called voluntary administration. A family member or executor files a short affidavit with the Surrogate’s Court for a $1 filing fee. This option is not available if the deceased owned real estate in their own name. In that case, full probate is required regardless of the estate’s total value.
7. Do I still need a will if I have a trust?
Yes. A trust only controls the assets that have been formally transferred into it. A will catches anything that was left out of the trust and directs it into the trust at death. It also allows you to name a guardian for minor children, which a trust cannot do. Most complete estate plans include both.
