Avoiding Probate in New York

Your will is an estate plan essential, but a will must be probated

There are many good reasons to have a will as part of your estate plan. A will helps ensure that your property is divided according to your wishes. Without a will, property is divided according to New York State law, which may not coincide with your wishes.

But a will must be filed in in court and admitted for probate, which is the legal process of transferring property ownership when someone dies. Probate takes place in a surrogate court in the county where the decedent lived. This process helps ensure that all property in an estate is identified and appraised, debts and taxes are paid and property is distributed to beneficiaries.

Probating a will in court takes time and comes with court fees. Throughout the probate process, there may be legal and other challenges against the executor or the estate. Because probate proceedings can be very complicated, you should seek advice from an estate planning attorney.Your estate plan can be designed with strategies to help you minimize the delays and costs of probate.

Save time and money with estate planning tools that help you avoid probate

Here are some strategies you can use to avoid or minimize the delays and expenses of probate:

  • File for an administration proceeding. In New York, only estates valued at more than $30,000 need to be probated in court. You can avoid probate by limiting the value of your estate using a trust or other investment strategy
  • Transfer assets to named beneficiaries. Most of your assets are probably tied up retirement accounts (401k, IRA), investment accounts (stocks, bonds, mutual funds), insurance policies, pension plans and bank accounts that request that you name beneficiaries. If you name a beneficiary (or co-beneficiaries), when you die, the assets immediately transfer directly to your named beneficiaries. These assets are not considered part of the estate, so they do not need to go through the probate process. Make sure that you keep your beneficiary designations up to date.
  • Create a living trust. Creating a living trust is often the best way to avoid probate. A living trust can act as an alternative to a will. A trust is a document that states who you want to manage and distribute your assets and property if you are incapacitated, and who will receive your assets and property after you die. Essentially, you transfer ownership of your assets and property to the trust. While you are alive, you control how your assets and property are used. The trust is managed by a trustee for the benefit of named beneficiaries.Since the assets and property remain owned by the trust, there is no need to go through the probate process.
  • Create joint tenancy with a right of survivorship. In New York, joint tenancy is a legal arrangement that states that real estate property is owned in equal shares by the named owners, all owners have full and equal access to the entire property and all owners must have received the same ownership document (deed) at the same time. Joint tenancy comes with rights of survivorship. This means that when one of the owners dies, the property becomes equally distributed among the remaining owners without going through probate.

An experienced estate law attorney in New York can help you determine if any or all of these strategies should be included in your estate plan.

Contact the attorneys at Lissner & Lissner LLP to create your estate plan

The attorneys at Lissner & Lissner LLP can advise you about your estate planning options. Located in midtown Manhattan, we have been helping our clients with elder law and estate law for seven decades. We can help you create an estate plan that works for your specific situation. Call (212) 307-1499 or contact us online today for help setting up your estate plan.

Micheal Lissner
About the Author: Michael Lissner
Micheal D. Lissner is an experienced trust and estate planning and administration attorney serving the New York City area. He handles cases ranging from estate planning to trust administration, medicaid planning, elder law, and representation of survivors of the Holocaust and their heirs