1. Which Assets Pass through Probate after Death?
Property held in the deceased person's name alone may require probate or administration, while survivorship rights and beneficiary designations often permit transfers outside court proceedings. Real estate also follows rules that distinguish ownership at death from an estate representative's authority to manage or sell it.
Individually Owned Real Estate
Under New York law, real estate may pass to heirs or beneficiaries when the owner dies, subject to estate debts and a fiduciary's statutory powers. This transfer of ownership does not necessarily give a beneficiary immediate authority to sell the property or resolve estate obligations.
Whether a court proceeding is necessary depends on the will, the property's title, and the steps required to settle the estate. An outstanding mortgage or lien continues to affect the property after death.
Joint Ownership and Beneficiary Accounts
A joint tenant's interest generally passes to the surviving joint tenant when the deed establishes a right of survivorship. A tenant in common's interest, by contrast, passes under the applicable will or intestacy rules.
Life insurance proceeds and certain financial accounts generally pass to designated beneficiaries under their governing terms. These transfers ordinarily do not require probate solely to establish the beneficiary's entitlement.
2. Will Vs. Living Trust: Which Assets Require Probate?
A will directs the distribution of property subject to testamentary succession. A living trust allows a trustee to hold and administer assets transferred into it during the creator's lifetime. The practical difference concerns ownership, administration, and the need for court involvement.
| Question | Will | Revocable Living Trust |
|---|---|---|
| When does it operate? | After death | During life and after death |
| Who administers assets? | Executor or other authorized fiduciary | Trustee |
| Is probate required? | Depends on the assets and available procedure | Generally not for properly funded trust assets |
| What property is covered? | Property subject to the will | Property validly transferred to the trust |
| Does it eliminate estate tax? | No | No |
When does it operate?
- WillAfter death
- Revocable Living TrustDuring life and after death
Who administers assets?
- WillExecutor or other authorized fiduciary
- Revocable Living TrustTrustee
Is probate required?
- WillDepends on the assets and available procedure
- Revocable Living TrustGenerally not for properly funded trust assets
What property is covered?
- WillProperty subject to the will
- Revocable Living TrustProperty validly transferred to the trust
Does it eliminate estate tax?
- WillNo
- Revocable Living TrustNo
What a Will Controls
A will names beneficiaries and nominates an executor to administer property governed by the will. Parents may also nominate guardians for minor children, although the court determines whether to make the appointment.
Under New York's rules for testamentary succession, the nominated executor ordinarily obtains authority through a court appointment. The will itself does not confer unrestricted authority to administer estate assets.
What a Living Trust Changes
A successor trustee generally administers properly funded trust property without obtaining letters testamentary for those assets. The trustee's authority comes from the trust instrument and applicable law.
Trustees remain responsible for carrying out the trust's terms, addressing applicable liabilities, and providing accountings when required. Avoiding probate does not eliminate these obligations.
Why Trust Funding Matters
EPTL § 7-1.18 requires an effective transfer of assets into a lifetime trust. Merely stating in the trust instrument that property has been assigned or received does not complete the transfer.
When the creator is the sole trustee, the statute requires recording or registration for assets capable of registration, including real estate. For other assets, a written assignment must identify the property with sufficient particularity.
3. New York Requirements for Estate Documents
New York imposes different execution requirements on wills and lifetime trusts. A document that expresses the owner's wishes may still fail if the required formalities are missing. Changes to property ownership also require attention to the documents that establish title.
Executing a Written Will
Under EPTL § 3-2.1, a conventional written will generally must be signed at its end by the testator or by another person acting under the statute's conditions. The testator must sign in each attesting witness's presence or acknowledge the signature to that witness.
The testator must also declare to each witness that the document is a will. At least two witnesses must attest the signature and sign at the testator's request within one 30-day period.
Signing or Changing a Lifetime Trust
EPTL § 7-1.17(a) requires a written lifetime trust that is properly acknowledged or executed before two witnesses. The creator and, unless the creator is the sole trustee, at least one trustee must execute the instrument.
Under EPTL § 7-1.16, a lifetime trust is irrevocable unless the instrument expressly provides that it is revocable. An amendment or revocation authorized by the trust generally must be written and satisfy EPTL § 7-1.17(b), unless the governing instrument provides otherwise.
EPTL § 7-1.16 also permits a revocable lifetime trust to be amended or revoked through an express direction in the creator's will that specifically identifies the trust or provision.
Checking Deeds and Account Records
A signed estate document does not necessarily change how an asset is titled. The following records help establish whether the intended transfer arrangement is in place:
- Recorded deeds showing the current owners.
- Executed wills, trusts, and amendments.
- Current beneficiary designations for accounts and insurance.
- Mortgage documents identifying secured obligations.
Moving real estate into a trust may require a separate property conveyance. Revising a will alone does not transfer legal title.
4. Probate Proceedings in Kings County
Kings County Surrogate's Court generally handles estate proceedings for people domiciled in Brooklyn at death. Probate addresses the admission of a will and appointment of an executor, while administration generally applies when no valid will governs the estate. Certain small estates qualify for a simplified procedure.
Probate with a Valid Will
The nominated executor generally files a probate petition with the original will and supporting documents. Interested persons receive notice or a citation as applicable and may raise legally recognized objections.
If the court admits the will and appoints the executor, it issues letters testamentary. These letters establish the executor's authority, subject to applicable restrictions.
Administration without a Will
When someone dies intestate, EPTL § 4-1.1 determines how qualifying estate property passes to surviving relatives. The distribution depends on which relatives survive the deceased.
The Surrogate's Court appoints an administrator under the applicable provisions of the Surrogate's Court Procedure Act. A family relationship alone does not authorize someone to administer the estate.
Small Estate Voluntary Administration
Under SCPA Article 13, certain estates with no more than $50,000 in qualifying personal property may use voluntary administration. The calculation excludes property set aside under EPTL § 5-3.1.
This simplified procedure may be available whether or not the deceased left a will. Ownership of real property does not automatically prevent voluntary administration of qualifying personal property, but the procedure does not authorize the administrator to manage or transfer the real property itself.
Transferring a Home after Death
Before selling estate real property, an executor or administrator must determine whether the transaction falls within the fiduciary's statutory authority and whether court approval is required. The deed, estate obligations, and any mortgage may affect how the sale proceeds.
For a home held in a living trust, the trustee instead follows the trust instrument and applicable law. This distinction affects who may execute transfer documents and whether trust administration or estate administration governs the transaction.
5. When Estate Documents Do Not Work As Intended
An unfunded trust may leave property subject to probate, while a defective will may face objections before the court appoints an executor. These problems arise at different stages and require different legal inquiries. One concerns whether property entered the trust; the other concerns whether the court should admit the will.
A Pour-over Will and Property Outside the Trust
Under EPTL § 3-3.7, a properly drafted pour-over will may direct qualifying estate property into an identified trust. The trust must satisfy the statute's requirements for receiving a testamentary disposition.
The executor generally must complete the applicable estate administration steps before transferring the property. A pour-over provision therefore does not eliminate probate for assets that must first pass through the estate.
Objections to a Will
A person with standing may challenge probate based on improper execution, lack of testamentary capacity, fraud, or undue influence. Disagreement with the distribution alone does not establish that a will is invalid.
The evidence depends on the objection. Witness testimony may address execution formalities, while medical records and testimony about the signing circumstances may bear on capacity.
22 Oct, 2026
