1. Asset Ownership Determines How Property Passes after Death
A will does not control every asset a person owns. The transfer process depends on property titles, beneficiary designations, and trust ownership. These distinctions determine which assets require probate and who has authority to transfer them.
Comparing Common Asset Transfer Methods
Assets follow different legal paths depending on their ownership and transfer arrangements.
| Transfer Method | How Property Passes | Key Document or Record |
|---|---|---|
| Will | Through probate when required | Valid will and court appointment |
| Funded living trust | Under the trust's terms | Trust instrument and asset title |
| Beneficiary designation | Generally directly to the named beneficiary | Current beneficiary designation |
| Joint ownership with survivorship | Generally to the surviving owner | Deed or account ownership agreement |
Will
- How Property PassesThrough probate when required
- Key Document or RecordValid will and court appointment
Funded living trust
- How Property PassesUnder the trust's terms
- Key Document or RecordTrust instrument and asset title
Beneficiary designation
- How Property PassesGenerally directly to the named beneficiary
- Key Document or RecordCurrent beneficiary designation
Joint ownership with survivorship
- How Property PassesGenerally to the surviving owner
- Key Document or RecordDeed or account ownership agreement
Survivorship rights depend on the form of ownership. Tenancy in common does not automatically transfer a deceased owner's interest to the surviving co-owner.
When a Will Does Not Control Distribution
A will generally governs probate assets but does not override effective beneficiary designations or established survivorship rights.
EPTL § 4-1.1 governs intestate succession when property is not disposed of by a valid will. Competing documents or execution defects may require a separate will validity review.
2. Signed Estate Documents Must Match Ownership Records
A properly executed document can establish legally effective instructions without completing the intended transfer of property. Owners should compare wills, trust instruments, deeds, and financial account records. Missing or inconsistent documents may leave assets outside the intended arrangement.
Will Execution and Witness Requirements
EPTL § 3-2.1 generally requires a written will signed by the testator at the end of the document, subject to limited exceptions.
The testator must sign or acknowledge the signature to at least two witnesses and declare the document to be a will. Both witnesses must complete their attestation within one 30-day period.
Notarization alone cannot replace these requirements. Probate also generally requires the original will unless an applicable exception permits other proof.
Trust Execution and Asset Funding
EPTL § 7-1.17 establishes execution requirements for lifetime trusts, generally involving the creator and at least one trustee unless the creator is the sole trustee.
EPTL § 7-1.18 separately governs funding. An assignment stated in the trust instrument does not automatically complete an asset transfer.
When the creator is the sole trustee, funding registrable property generally requires recording the deed or completing the appropriate registration.
A funded revocable trust may allow successor-trustee administration without probate for trust assets. Property outside the trust may require separate administration.
Keeping Beneficiary Records Current
A later will does not necessarily change an insurance policy or retirement account's beneficiary designation.
Owners should review beneficiary forms, account registrations, and original documents after marriage, divorce, death, or changes in ownership.
3. Real Estate Transfers Require Local Recording and Tax Review
Executing a will or trust does not necessarily change recorded property ownership. Real estate transfers may require a deed, proper delivery, and recording procedures separate from the estate planning document.
Transferring Property into a Trust
Ownership determines the required transfer process. Sole ownership, tenancy in common, and survivorship arrangements carry different legal consequences.
Transferring real estate into a lifetime trust may require a new deed. EPTL § 7-1.18 addresses recording requirements when the trust creator serves as sole trustee.
The real estate transfer process also involves reviewing mortgages, title records, and recording documentation.
Municipal Transfer Tax and County Recording
Yonkers City Code § 15-60 generally imposes a 1.5% transfer tax on covered deeds when consideration exceeds $25,000.
For taxable deeds, § 15-62 requires payment within seven days after delivery and before recording. Section 15-63 generally requires a joint return even when no tax is due, subject to exceptions.
Exemptions under § 15-64(B) require supporting documentation. Transfers into personal trusts do not automatically qualify.
The Westchester County Clerk records the deed after the required municipal transfer-tax receipt is obtained. New York State transfer-tax rules must also be considered separately.
4. Westchester County Surrogate'S Court Handles Estate Proceedings
The deceased person's domicile generally determines the proper court, rather than property location alone. Under SCPA § 205, proceedings involving a New York domiciliary ordinarily belong in the county of domicile.
Probate, Administration, and Small Estates
Westchester County Surrogate's Court is located at 111 Dr. Martin Luther King Jr. Boulevard, 19th Floor, White Plains, NY 10601.
Probate establishes a will's validity, while administration generally addresses estates without an effective will or an available executor.
Court-issued letters establish a personal representative's authority. Probate administration includes collecting assets, resolving valid claims, and distributing property.
Voluntary administration may be available for qualifying personal property valued at $50,000 or less. It does not authorize administration of solely owned real estate.
For non-domiciliaries, SCPA § 206 establishes separate jurisdiction and venue rules.
Electronic Filing and Original Document Requirements
Westchester County generally requires NYSCEF electronic filing for probate, administration, accounting, and certain miscellaneous proceedings.
Unrepresented litigants are exempt from mandatory electronic filing. Small-estate matters follow separate electronic filing rules.
Under published court protocols, electronic filers generally must deliver the original will within two business days after filing. Required hard-copy death certificates follow a similar submission period.
5. Spousal Rights and Estate Liabilities Affect Distribution
Beneficiaries may not receive property immediately after death. Personal representatives must consider surviving spouse rights, creditor claims, administrative expenses, and taxes before distributing estate assets.
Surviving Spouse Rights
EPTL § 5-1.1-A generally permits a qualifying surviving spouse to claim an elective share, subject to statutory conditions and effective waivers.
The elective share generally equals the greater of $50,000, capped at the net estate's value, or one-third of the net estate. Certain lifetime transfers may count as testamentary substitutes.
The ordinary deadline is six months after issuance of letters testamentary or administration, but generally no later than two years after death. Statutory exceptions and court-authorized extensions may apply.
Federal and State Estate Tax Obligations
Federal and New York State estate taxes have separate exclusion amounts and filing requirements.
For deaths in 2026, the federal basic estate tax exclusion is $15 million for U.S. .itizens and residents. New York's basic exclusion is $7.35 million.
Tax treatment depends on estate valuation, applicable gifts, residency, and deductions. Avoiding probate through a revocable trust does not automatically exclude trust assets from estate taxation.
Documents to Review before Distribution
Executors and trustees should verify ownership, beneficiary rights, and outstanding obligations using:
- Recorded deeds and ownership records.
- Trust instruments and funding records.
- Original wills and court orders.
- Beneficiary designations and account statements.
- Creditor notices, debt records, and tax documents.
Discrepancies should be resolved before final distribution, particularly when ownership or beneficiary rights remain disputed.
20 Oct, 2026
