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A Clear, Practical Guide for Families

When a loved one passes away, one of the first legal questions families ask is simple: Do we have to go through probate?

In New York, the answer depends less on whether there is a Will and more on how the decedent’s assets were titled at the time of death. Some estates require a full probate proceeding in Surrogate’s Court. Others qualify for a simplified process. And in some cases, no court involvement is necessary at all.

The starting point is whether there is a Will. If a valid Will exists and the decedent owned assets in his or her name alone, the Will must be admitted to probate so the court can formally appoint the Executor. If there is no Will, a similar court process, called an Administration proceeding, may be required so that an Administrator can be appointed under New York’s intestacy laws. Importantly, however, the mere existence of a Will does not automatically mean probate is required. The real issue is whether there are probate assets.

Probate is generally required when a person dies owning assets solely in his or her individual name without a beneficiary designation. This commonly includes real estate titled individually, bank or investment accounts without joint owners or transfer-on-death designations, vehicles titled solely in the decedent’s name, or refunds and legal claims payable to the estate. When these types of assets exist, court authority is usually necessary before they can be collected, transferred, or sold.

By contrast, many assets pass automatically by operation of law and do not go through probate. Joint bank accounts with rights of survivorship pass directly to the surviving joint owner. Real estate owned jointly with survivorship rights transfers automatically at death. Retirement accounts and life insurance policies with named beneficiaries pass directly to those beneficiaries. Accounts with payable-on-death (POD) or transfer-on-death (TOD) designations avoid probate as well. Assets properly titled in a revocable or irrevocable trust are also administered outside of the probate process. If all of a person’s assets fall into these non-probate categories, a court proceeding may not be necessary.

There is also a simplified option for smaller estates. If the total value of probate assets is $50,000 or less, New York allows a streamlined process known as a Voluntary Administration, often referred to as a small estate proceeding. This can be quicker and less expensive than full probate. However, it is important to understand that real estate cannot be transferred through a small estate proceeding. If the decedent owned real property in his or her name alone, a full probate or administration proceeding is almost always required in order to transfer clear title. In Monroe County and throughout New York, title companies will require proper court authority before permitting a sale or transfer of individually owned real estate.

Ultimately, probate is the legal mechanism that validates a Will (if there is one), appoints the fiduciary in charge of the estate, authorizes the collection of assets, ensures debts are addressed, and oversees distribution to beneficiaries. While probate is often viewed with concern, in many cases it is a straightforward and manageable process when handled properly from the outset.

Not every estate in New York requires probate, but many do. The key question is not simply whether a Will exists; it is how the assets were titled at death. A careful review of the asset structure can usually determine, fairly quickly, whether a court proceeding is necessary and what form it should take.

If you would like to schedule a consultation to discuss creating or updating your estate planning, please contact our estate planning attorneys: Daniel S. Williford at 585-512-3511 or dwilliford@mccmlaw.com;  Spencer C. Malone at 585-512-3550 or smalone@mccmlaw.com; or Michael F. McConville at 585-512-3517 or mmconville@mccmlaw.com.

This publication is intended as an information source for clients, prospective clients, and colleagues and constitutes attorney advertising. The content should not be considered legal advice and readers should not act upon information in this publication without individualized professional counsel.

About MCCM

McConville Considine Cooman & Morin, P.C. is a full-service law firm based in Rochester, New York, providing high-quality legal services to businesses and individuals since 1979.  With over a dozen attorneys and a full paralegal support staff, the firm is well-positioned to right-size services tailored to each client. We are large enough to provide expertise in a broad range of practice areas, yet small enough to devote prompt, personal attention to our clients.

We represent a diverse range of clients located throughout New York State and New England.  They include individuals, numerous manufacturing and service industry businesses, local governments, and health care professionals, provider groups, facilities and associations. We also serve as local counsel to out-of-state clients and their attorneys who have litigation pending in Western New York courts.  For more information, please contact us at 585.546.2500.