What Assets Must Go Through Probate in New York (and What Skips It)

In New York, only assets titled in the decedent’s name alone, with no beneficiary designation and no surviving co-owner, must go through probate in Surrogate’s Court. Everything that passes by operation of law—jointly owned property with survivorship rights, accounts with a named beneficiary, and assets held in a trust—skips probate entirely and goes straight to the person entitled to it. Understanding which category an asset falls into is usually the single biggest factor in how long a beneficiary waits to receive a distribution.

If you are a beneficiary waiting on an inheritance, this distinction matters more than almost anything else. The probate estate is what the Surrogate’s Court actually controls and what the executor must account for. Assets that bypass probate often reach their recipients within weeks; probate assets can take many months. Below is a working attorney’s breakdown of where the line falls under New York law.

What probate actually is in New York

Probate is the court-supervised process of proving that a will is valid and authorizing the named executor to act. It happens in the Surrogate’s Court of the county where the decedent lived—in Brooklyn, that’s Kings County Surrogate’s Court. The governing rules come from two main statutes: the Surrogate’s Court Procedure Act (SCPA), which sets out the procedure, and the Estates, Powers and Trusts Law (EPTL), which sets out substantive rights to property.

A common point of confusion: not everything a person owned at death is part of the probate estate. The word “estate” gets used loosely. For beneficiaries, the useful question is narrower—which assets does the executor have to collect, report, and distribute through the court, and which ones never touch the court at all?

Assets that must go through probate

An asset generally lands in the probate estate when it was held in the decedent’s name alone and has no built-in mechanism to transfer on death. The classic examples:

• Solely owned real estate. A house, condo, or co-op apartment titled only in the decedent’s name—with no joint owner and no transfer-on-death deed—passes through probate. In Brooklyn, co-op shares are personal property, but the same titling logic applies.
• Individual bank and brokerage accounts. A checking, savings, or investment account in the decedent’s name alone, with no payable-on-death (POD) or transfer-on-death (TOD) beneficiary, is a probate asset.
• Vehicles, boats, and tangible personal property. Cars, jewelry, art, furniture, and collectibles titled to or owned by the decedent individually.
• Business interests held individually. A sole proprietorship, or shares and membership interests held in the decedent’s own name without a transfer mechanism in the operating or shareholder agreement.
• Money owed to the decedent. Personal loans receivable, final paychecks, and similar debts payable to the decedent personally.
• Retirement accounts or life insurance with no valid beneficiary. Normally these skip probate—but if the beneficiary form names the estate, names no one, or all named beneficiaries predeceased with no contingent, the proceeds default into the probate estate.

If there’s a will, the executor offers it for probate; if there’s no will, the estate is administered intestate and a close relative petitions to be appointed administrator under SCPA Article 10, with distribution following the intestacy rules in EPTL 4-1.1. Either way, these solely owned assets are the ones the court supervises. For a fuller walkthrough of how an executor collects and distributes them, see this overview of .

Assets that skip probate in New York

A large share of a typical New Yorker’s wealth never enters probate at all. These assets pass “by operation of law” or by contract, meaning the transfer mechanism is already baked into how the asset is held. The will does not control them, and the executor has no authority over them.

Jointly owned property with survivorship

Property held as joint tenants with right of survivorship or, between spouses, as a tenancy by the entirety, passes automatically to the surviving owner the instant the co-owner dies. A married couple’s home held as tenants by the entirety is the most common example in Brooklyn. The survivor typically just records a death certificate—no court involvement.

One caution: not all co-ownership carries survivorship. Property held as tenants in common does not pass to the other owner. The decedent’s fractional share goes through probate. The deed language controls, so it pays to read it carefully rather than assume.

Accounts and policies with named beneficiaries

• Life insurance paid to a named living beneficiary.
• Retirement accounts—401(k), IRA, 403(b), pensions—paid to a named beneficiary.
• Payable-on-death (POD) and transfer-on-death (TOD) bank and brokerage accounts.
• “In trust for” (Totten) accounts, a common New York savings account arrangement where the funds pass to the named beneficiary at death.

These transfers happen by contract. The financial institution pays the named beneficiary directly upon receiving a death certificate and claim form, regardless of what the will says.

Assets held in a revocable living trust

A revocable living trust is a well-established New York tool for avoiding probate. Assets retitled into the trust during life are no longer owned by the individual—they’re owned by the trust—so they pass under the trust’s terms without court supervision when the grantor dies. The catch is funding: a trust only avoids probate for assets actually transferred into it. An unfunded trust on paper accomplishes nothing for the deed still sitting in the decedent’s individual name.

The wrinkles every beneficiary should know about

The clean line between probate and non-probate assets has a few important exceptions under New York law.

The spousal right of election

A surviving spouse in New York cannot be fully disinherited. Under EPTL 5-1.1-A, a surviving spouse has a right of election to claim the greater of $50,000 or one-third of the net estate. Critically, this elective share is calculated against an augmented “net estate” that pulls in many non-probate “testamentary substitutes”—joint accounts, POD accounts, certain trust assets, and gifts made near death. So even an asset that skips probate can be reached to satisfy a spouse’s elective share. The election must generally be made within six months of the issuance of letters and no later than two years after death.

Small estates and voluntary administration

When the probate (personal property) estate is modest, New York offers a streamlined alternative under SCPA Article 13: voluntary administration, often called the small estate proceeding. It’s available when the decedent’s personal property—excluding real estate—is $50,000 or less. A voluntary administrator can collect and distribute those assets using a simplified affidavit procedure instead of full probate, which gets beneficiaries paid considerably faster.

What dies with the person

Certain instruments are sometimes confused with probate assets but are actually irrelevant to it. A statutory durable power of attorney under General Obligations Law (GOL) 5-1501 and a health care proxy both terminate automatically at death. They govern decisions during life only and confer no authority over the estate. After death, only the executor or administrator—appointed by the Surrogate’s Court—has authority over probate assets.

Why this matters when you’re waiting on a distribution

If you’ve been named in a will or are a close relative of someone who died without one, the probate-versus-non-probate question largely predicts your timeline. Non-probate assets—your share of a joint account, a life insurance payout, an IRA where you’re the named beneficiary—can be claimed almost immediately. Probate assets sit until the court issues letters, the executor settles debts and taxes, and a distribution (or a formal or informal accounting) is made.

Delays usually come from a handful of sources: a missing or ambiguous will, a will contest, hard-to-value assets like real estate or a business, unresolved creditor claims, or an executor who is slow to account. If you suspect the will itself is in question, it’s worth understanding the grounds and procedure for before the window to object closes.

For families with assets in more than one state—a Brooklyn home plus a Florida condo, for instance—a second, ancillary proceeding may be needed where the out-of-state property sits. An affiliated office can assist with the Florida side of probate when that comes up.

If you’re trying to figure out whether a specific asset is part of the probate estate—or you’re a beneficiary who feels left in the dark—a focused review of the titling and beneficiary designations usually answers the question quickly. You can learn more about our Brooklyn probate practice, review how we handle wills and estate planning, or reach out to our office to discuss your situation.

Key takeaways

• Probate assets = solely owned property with no co-owner and no beneficiary designation.
• Non-probate assets = joint property with survivorship, POD/TOD and beneficiary-designated accounts, and funded revocable trusts.
• A surviving spouse’s elective share (EPTL 5-1.1-A) can reach even some non-probate assets.
• Small personal-property estates of $50,000 or less may qualify for voluntary administration under SCPA Article 13.
• Powers of attorney and health care proxies end at death and have no role in administering the estate.

Frequently Asked Questions

Does a will avoid probate in New York?

No. A will is precisely what gets proved in probate. The will tells the Surrogate’s Court who should receive the decedent’s solely owned assets and who should serve as executor, but the assets still pass through the court process. To avoid probate, assets must be held jointly with survivorship, carry a beneficiary designation, or be funded into a revocable living trust during life.

Do bank accounts go through probate in New York?

It depends on how the account is titled. An account in the decedent’s name alone with no payable-on-death (POD) beneficiary is a probate asset. A joint account with survivorship, a POD account, or an ‘in trust for’ (Totten) account passes directly to the named survivor or beneficiary and skips probate.

How long does probate take in Brooklyn?

There is no fixed timeline. Uncontested estates with clear assets often take several months from filing to distribution in Kings County Surrogate’s Court. A will contest, hard-to-value real estate or business interests, tax issues, or creditor disputes can extend the process well beyond a year.

Can a surviving spouse be disinherited in New York?

Not entirely. Under EPTL 5-1.1-A, a surviving spouse has a right of election to claim the greater of $50,000 or one-third of the net estate. This share is calculated against an augmented estate that includes certain non-probate ‘testamentary substitutes,’ so it can reach assets that otherwise skip probate. The election generally must be made within six months of letters being issued.

What is a small estate proceeding in New York?

It is a simplified alternative to full probate, called voluntary administration under SCPA Article 13, available when the decedent’s personal property (excluding real estate) totals $50,000 or less. A voluntary administrator uses an affidavit-based procedure to collect and distribute the assets, which generally gets beneficiaries paid much faster than formal probate.