Long Island Elder Law & Estate Planning

Probate Avoidance Scaled E

Creating an estate plan gives you an opportunity to decide what should happen to your property after your death, but deciding who receives your assets is only part of the planning process. You should also consider how those assets will reach the people you have chosen. If significant property remains in your individual name when you die, your family may need to navigate probate before that property can be transferred to your beneficiaries. Probate serves an important legal purpose, but the court-supervised process can involve delays, expenses, administrative responsibilities, and a loss of financial privacy. For those reasons, incorporating probate avoidance into your New York estate plan may make the eventual transfer of your property considerably easier for the people you leave behind. With that in mind, the Long Island attorneys at Eghrari Law Firm explain how to incorporate probate avoidance into your New York estate plan.

Understanding Probate in New York

Probate is the court proceeding used to establish the validity of a Last Will and Testament and authorize the administration of an estate. When you leave behind a valid Will containing probate assets, the person you nominated as Executor generally petitions the appropriate Surrogate’s Court to have the Will admitted to probate and to obtain authority to administer the estate.

Once authorized, your Executor may be responsible for identifying and protecting estate property, determining its value, addressing legitimate debts and expenses, handling applicable tax matters, maintaining appropriate records, and ultimately distributing the remaining property according to your Will. Court supervision can provide an orderly framework for estate administration and may be particularly valuable when questions arise concerning the validity of a Will or the proper administration of estate property.

Nonetheless, probate can require substantial time and administrative work. Even an estate without significant conflict may require months to administer, while complicated assets, creditor issues, disagreements among interested parties, or litigation can extend the process substantially. The expenses associated with court proceedings, legal representation, appraisals, property management, and other administrative requirements can also reduce the property ultimately available to beneficiaries.

A Last Will and Testament Does Not Avoid Probate

One of the most persistent misconceptions surrounding estate planning is that executing a Will allows your estate to avoid probate. While a Last Will and Testament provides instructions for the disposition of property subject to probate, the probate process is what gives legal effect to those instructions and authorizes the Executor to administer the probate estate. As such, executing a Will does not prevent your estate from having to go through probate. If avoiding probate is one of your priorities, you need to consider how your property is owned and transferred rather than assuming your Will accomplishes that goal.

Make a Revocable Living Trust the Foundation of Your Plan

For many people, a Revocable Living Trust can serve as the foundation of a comprehensive probate-avoidance strategy. When you create a Revocable Living Trust, you establish a separate legal arrangement to own and manage designated property. You will typically serve as the initial Trustee, allowing you to retain control over the trust property during your lifetime. Depending upon the trust and the assets involved, you can continue managing investments, using financial accounts, buying and selling property, and otherwise controlling your assets. The trust agreement also identifies a successor Trustee who can assume responsibility under the circumstances described in the document. After your death, the successor Trustee can administer trust property and distribute it according to your instructions without requiring that property to pass through probate merely because of your death. A trust can also provide considerably more control over inheritances than an outright distribution. Instead of directing the successor Trustee to immediately distribute everything to your beneficiaries, you can create continuing trusts for children or other loved ones. You might authorize distributions for education, healthcare, housing, and other needs while postponing complete control of the inheritance. Trust planning can also be useful when a beneficiary has special needs, struggles with financial management, or would benefit from additional protection.

Creating a Trust Is Not Enough: You Must Fund It

A beautifully drafted Revocable Living Trust accomplishes little for probate avoidance if the property you intended it to control remains outside the trust. Funding is the process of transferring appropriate assets into the trust or otherwise coordinating them with your trust-based estate plan with the precise method depending upon the asset. Real estate may require a properly prepared and recorded deed. Non-retirement financial accounts may need to be retitled. Closely held business interests may require assignments or changes to ownership records, subject to governing agreements and other restrictions. If you die while still owning property individually and no other non-probate transfer mechanism applies, probate may be necessary despite the existence of your trust.

Use Beneficiary Designations Strategically

Many valuable assets already contain mechanisms that allow them to transfer outside probate. Life insurance policies and retirement accounts, including IRAs and employer-sponsored retirement plans, commonly permit you to name beneficiaries. When the designation is valid and the beneficiary survives you, the asset generally transfers according to the beneficiary arrangement rather than the terms of your Will. Certain financial accounts can also be structured with payable-on-death or transfer-on-death designations. These arrangements allow the account to remain under your control during your lifetime while identifying who should receive it after your death.

Consider Joint Ownership Carefully

Joint ownership with survivorship rights can allow certain property to transfer automatically to the surviving owner when one owner dies. Because the surviving owner receives the deceased owner’s interest by operation of the ownership arrangement, probate may not be necessary for that property. Married couples frequently use forms of joint ownership for residences and financial accounts. In appropriate circumstances, survivorship ownership can provide a straightforward method of transferring property. Be careful, however, because adding an adult child to an account or deed simply to avoid probate can create consequences you did not anticipate. Depending upon the arrangement, you may be giving that person a present ownership interest rather than merely naming someone to inherit later. That interest may also become relevant to the co-owner’s creditors, divorce, financial difficulties, or other personal circumstances. Joint ownership can also undermine an estate plan involving multiple beneficiaries. If you add one child as a joint owner of a substantial account expecting that child to divide the money with siblings after your death, the legal ownership arrangement may not require the child to follow your informal instructions.

Take Advantage of New York’s Transfer-on-Death Deed Law

Real estate has historically presented a particularly important probate-planning issue because a home or other property titled solely in the owner’s name may require estate administration before ownership can be transferred. New York now provides another planning option. Legislation effective July 19, 2024, permits the use of transfer-on-death deeds for qualifying New York real property.

A transfer-on-death deed allows you to identify one or more beneficiaries who will receive your interest in the property upon your death without giving those beneficiaries a present ownership interest merely because you executed the deed. During your lifetime, you retain ownership and control of the property. The deed is also revocable during your lifetime, provided applicable legal requirements are satisfied.

Do Not Rely on Small-Estate Procedures as Your Primary Plan

New York provides simplified procedures for qualifying small estates valued at less than $50,000 (as of 2026). These procedures can reduce the burden associated with formal estate administration when the probate property falls within applicable statutory requirements. A simplified procedure can be valuable when available, but it is not the same as intentionally creating an estate plan designed to transfer assets outside probate.

Your financial circumstances can change significantly between the date you create an estate plan and your death. Property values may increase, you may acquire additional assets, or an account that currently has a valid beneficiary designation may later become part of your probate estate. Rather than assuming your estate will qualify for simplified administration, consider whether appropriate probate-avoidance strategies can prevent assets from becoming probate property in the first place.

Can We Help You Incorporate Probate Avoidance into Your New York Estate Plan?

For more information, please join us for a FREE estate planning seminar. If you would like help incorporating probate avoidance into your New York estate plan, contact the Long Island estate planning attorneys at Eghrari Law Firm by calling us at 631-265-0599 to schedule your appointment.

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About Eghrari Law Firm

Mark S. Eghrari is an attorney in private practice in Smithtown, New York. He has been in practice since 1988. Mark S. Eghrari provides extensive estate and tax planning services to individuals and businesses. Mr. Eghrari’s primary focus is helping clients avoid probate, minimize or eliminate Federal and State Estate taxes and protect their assets from the high cost of nursing care, if they become ill Read More!