Not everything in an estate has to pass through Surrogate's Court, and
knowing the difference can save an executor months of unnecessary work —
or cost a family real money if it's gotten wrong. My office helps New
York families identify which assets pass automatically outside of
probate, correct beneficiary designations that no longer reflect their
wishes, and structure new accounts and property so the right people
receive them without court involvement.
What Counts as a Non-Probate Asset in New York
A will only controls property that is titled solely in the decedent's name at death. A significant share of most estates never falls into that category. As explained in more detail in our article on assets that pass outside probate in New York, these typically include:
- Beneficiary-designated accounts — life insurance, IRAs, 401(k)s, and annuities pass directly to the named beneficiary by contract, regardless of what the will says.
- Jointly held property with rights of survivorship — real estate, bank accounts, or brokerage accounts titled jointly pass to the surviving co-owner automatically.
- Payable-on-death (POD) and transfer-on-death (TOD) accounts — bank and brokerage accounts with a POD/TOD designation transfer directly to the named beneficiary.
- Assets held in a properly funded trust — property titled in the name of a revocable or irrevocable trust is distributed by the successor trustee, not through Surrogate's Court.
Sorting these correctly at the outset determines whether an executor has to open a probate proceeding at all, and it affects how quickly a surviving spouse or family member can access funds they may urgently need.
How We Help
- We inventory the decedent's assets and identify, item by item, which pass outside probate and which require a Surrogate's Court proceeding.
- We pull and review beneficiary designation paperwork — insurance policies, retirement accounts, and annuities — to confirm who is actually entitled to receive each asset.
- We confirm account titling and survivorship language on jointly held real estate, bank accounts, and brokerage accounts so ownership transfers correctly.
- We coordinate directly with banks, insurers, and brokerage firms on your behalf to process POD/TOD transfers and release funds to the named beneficiary.
- We review and, where appropriate, help update your own designations and titling during lifetime planning, especially after a divorce, remarriage, or new grandchild.
- Where a trust is involved, we work with the successor trustee to confirm the asset was properly funded into the trust and guide distribution under its terms.
Where This Gets Complicated
Non-probate status isn't automatic just because an account "feels" jointly owned or a form was signed years ago. A joint account opened for convenience — say, to let an adult child pay bills — can carry unintended survivorship rights. A beneficiary named on an old 401(k) from a prior employer, never updated after a divorce, can still control the payout. And assets a person believed were "in the trust" sometimes were never actually retitled, which means they fall back into the probate estate after all. My office reviews the actual paperwork rather than assuming, because that review is what determines whether an executor needs to open a Surrogate's Court proceeding — or can skip it — for a given asset. When probate can't be avoided for the rest of the estate, we also handle probate and estate administration and the related work of collecting and marshaling estate assets.
Frequently Asked Questions
Does a will override a beneficiary designation in New York?
No. Beneficiary designations on life insurance, retirement accounts, and annuities are contractual and control regardless of what the will states, unless the designation itself is successfully challenged.
Do I still need a will if most of my assets pass outside probate?
Yes. A will still controls anything not covered by a beneficiary designation, joint title, or trust, and it names an executor and guardians for minor children.
What happens if a joint account holder dies without a survivorship designation?
If the account isn't titled with rights of survivorship, the deceased owner's share may need to pass through probate instead of transferring automatically.
Can a TOD or POD beneficiary be changed at any time?
Yes. The account owner can change or revoke a payable-on-death or transfer-on-death designation at any time while alive, and the named beneficiary has no rights to the account until then.
What if an asset was supposed to be in my trust but wasn't retitled?
An asset never formally transferred into the trust generally remains part of the probate estate, which is why we confirm actual titling rather than assuming a trust covers everything.
Law Offices of Roman Aminov
147-17 Union Turnpike, Flushing, NY 11367
Phone: (347) 766-2685 | Fax: (347) 474-7344
