Ways to Avoid Probating a Will

If you have an estate with any number of assets, including a home, real estate, retirement benefits, and bank accounts, passing these along to your heirs can be quite a challenge for them if your will needs to go through probate. Furthermore, having your estate go through the probate courts, referred to as Surrogate’s Court in New York, creates a public record that others can look up and view, creating privacy concerns for your heirs which they may rather avoid.


The good news is that New York probate laws allow individuals numerous ways to pass along the assets of their estate to heirs that can also avoid the timely, and often times expensive, process of passing a will through probate courts. It is important to know that even these means to pass assets outside of a probate court have their own challenges that need to met in order to ensure an easier transfer of assets upon passing away.


One of the more common ways for individuals to transfer their assets upon death is to create a living trust (sometimes called an “inter vivos” or “revocable” trust) works by placing assets into a trust while still alive and then transferring to beneficiaries upon death. The benefit of a living trust is being able to maintain control of the assets during one’s lifetime and then allowing beneficiaries to assume control over the trust with the aid of a trustee.


Married couples in New York enjoy certain benefits that allow them to transfer property to surviving spouses upon the passing of one through a joint tenantship transfer. Through joint tenancy, surviving spouses automatically take ownership of assets like real estate, vehicles, and businesses in situations where each spouse owns an equal share of the property. In cases where couples own homes, the principle of tenancy in entirety automatically transferred the real estate to the surviving spouse.


New York is also one of only a handful of other states that allows married couples to jointly register stocks, bonds, and securities to transfer to beneficiaries in order to transfer these assets to the survivor upon death. It should be noted that life insurance policies and 401(k) plans already have named beneficiaries and will not need to pass through probate (so low as beneficiaries maintain the appropriate paperwork) but in some situations may be beneficial to place into a trust for the benefit of the heir.

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