1. Asset Ownership Determines Which Property Passes through Probate
Start with ownership records rather than names in a will. Property may pass under a deed, trust, or beneficiary designation instead. Classifying each asset reveals which transfers need court involvement.
Deeds Can Create Different Inheritance Rights
A survivorship deed generally transfers a deceased owner's interest to the surviving owner. Tenants in common hold separate interests that can pass through their estates. EPTL § 6-2.2 also recognizes tenancy by the entirety for real property conveyed to spouses, unless the deed provides otherwise.
The recorded deed matters more than a family's description of the home as jointly owned. The Westchester County Clerk maintains the land records.
Beneficiary Forms May Override Will Instructions
Life insurance, retirement plans, and payable-on-death accounts often transfer under beneficiary instructions rather than a will. A later will generally does not change a valid designation. Some employer retirement plans also carry federal spousal-benefit and consent requirements under ERISA.
Review the institution's current records after marriage, divorce, or a beneficiary's death. An executor should confirm ownership before treating proceeds as estate funds.
A Will Governs Assets without Another Transfer Route
Individually owned property lacking an effective alternative transfer may enter probate. A valid will directs those assets subject to debts, expenses, and statutory rights. The nominated executor generally needs letters testamentary before administering the estate.
Testamentary succession concerns property controlled by the will, not independent transfers.
2. Valid Documents and Completed Transfers Must Work Together
A signed trust does not necessarily own the assets listed in it. Compare estate documents against actual deeds and account titles to determine whether the intended transfers occurred.
A Will Requires the Correct Signing Ceremony
Under EPTL § 3-2.1, a conventional written will generally must be signed at the end by the testator or another person acting under statutory conditions. The testator must sign in each witness's presence or acknowledge the signature to each, and declare the document to be a will to each. At least two witnesses must sign at the testator's request within the same 30-day period.
Notarization does not replace these formalities. A later change ordinarily requires a properly executed codicil or new will.
A Trust Must Be Executed and Funded
EPTL § 7-1.17 requires a lifetime trust to satisfy written execution formalities involving acknowledgment or two witnesses. The creator and, unless the creator is the sole trustee, at least one trustee must execute it as required.
Funding is separate. Under EPTL § 7-1.18, listing an asset in the instrument does not itself transfer ownership. Real estate may require a recorded deed, and registrable accounts generally require retitling. A revocable trust controls assets effectively transferred into it.
3. Court Venue and Filing Depend on Domicile and Estate Assets
Westchester County Surrogate's Court handles eligible estate proceedings, but local property ownership alone does not establish venue. Domicile, asset location, and the presence of a valid will determine the appropriate process.
Domicile Usually Controls the Filing County
SCPA § 205 generally places venue for a New York domiciliary's estate in the county of domicile at death. A mailing address alone does not establish domicile. For a non-domiciliary who leaves property in the state, SCPA § 206 provides separate venue rules.
Identify the decedent's domicile before selecting a court. Property elsewhere may require another proceeding.
Probate, Administration, and Small Estates Differ
Probate determines a will's validity and permits appointment of an executor. Administration addresses estates without a will admitted to probate, with appointment priorities under SCPA § 1001. Probate administration includes identifying assets, resolving claims, and distributing remaining property.
Under SCPA §§ 1301–1302, qualifying personal-property estates worth $50,000 or less, excluding statutory setoffs, may use voluntary administration. It does not administer real property, but ownership of real property alone does not disqualify the personal-property proceeding.
Local Electronic Filing Has Specific Exceptions
The court's NYSCEF protocol requires electronic filing for covered probate and administration matters, subject to exemptions. Small-estate electronic filing is consensual, and unrepresented parties are exempt from mandatory participation.
The published protocol directs filers to scan a will without unstapling it and submit the paper original within two business days of e-filing. The court sits in White Plains. County Clerk land records serve a different function from Surrogate's Court filings.
4. Spousal Rights, Claims, and Taxes Affect Final Distribution
Naming a beneficiary does not settle every claim against an estate. Executors must consider a spouse's statutory rights, valid debts, and possible tax obligations before distributing property.
Intestacy and the Elective Share Serve Different Purposes
Under EPTL § 4-1.1, a surviving spouse and descendants generally divide the intestate estate as follows: the spouse receives $50,000 plus half the balance; descendants receive the remainder by representation.
Separately, EPTL § 5-1.1-A gives a qualifying surviving spouse an elective-share right involving certain non-probate transfers. The election ordinarily must be filed within six months after letters issue and no later than two years after death, subject to statutory extensions. Spousal inheritance planning is relevant when trusts or beneficiary designations affect those rights.
Probate Assets and Taxable Assets Are Not Identical
Non-probate property can still count for estate tax. For deaths in 2026, New York's basic estate tax exclusion is $7,350,000, while the federal basic exclusion is $15,000,000. These amounts do not alone determine tax liability or filing obligations.
The executor should examine lifetime gifts, asset values, domicile, and the applicable state and federal reporting rules.
Check Conflicting Records before Transferring Property
A deed, trust schedule, and beneficiary form may name different recipients. Preserve original documents and obtain current ownership records before making a distribution. If someone contests a will, evidence about execution, capacity, or undue influence may become relevant.
The useful questions are concrete: Who owned the asset? Which legally effective instrument controls its transfer? What debts or statutory rights must be addressed first?
20 Oct, 2026
