1. Compare the Estate Plan with the Property That Actually Exists
Create an inventory of significant assets, titled owners, named beneficiaries, and any trust or agreement affecting transfer. This helps separate probate property from assets that may pass another way.
Separate Probate Property from Other Transfers
Property owned individually at death without an effective nonprobate transfer mechanism may become part of the probate estate. If a valid will governs that property, it generally operates through probate. Property not controlled by a valid will may instead pass under New York intestacy rules.
Trust assets, certain jointly owned property, and accounts with effective beneficiary designations can follow different paths. Testamentary succession therefore cannot be evaluated from the will alone.
Check Beneficiary Designations Separately
Life insurance, retirement accounts, payable-on-death arrangements, and similar assets may transfer according to their beneficiary records rather than a will.
A later beneficiary form may direct an account differently from an older estate plan, so current account records should be checked before identifying the recipient.
Identify Problems When a Minor Is Named
A minor may be entitled to receive property without having legal authority to manage it personally.
A trust, custodial arrangement, or property guardianship may determine how the asset is held until the beneficiary can legally control it.
2. Check Whether the Will and Trust Were Properly Implemented
Document validity and asset ownership are separate issues. A valid will may no longer control property transferred during life, while a trust may hold fewer assets than the plan anticipated.
Confirm Will Execution and Later Changes
Under New York EPTL § 3-2.1, a will generally must satisfy statutory signing, declaration, and attestation requirements, including attestation by at least two witnesses.
The file should also be checked for later wills, codicils, revocation issues, and amendments that may have changed the earlier plan.
Locate the Original Will
The original document matters because probate ordinarily proceeds with the original will. If only a copy remains, the family may need to determine where the original was last kept or whether an attorney or other custodian retained it.
If the original cannot be found, SCPA § 1407 requires proof of nonrevocation, proper execution, and the will’s provisions as required by the statute.
Confirm That Intended Trust Property Reached the Trust
Creating a lifetime trust does not automatically move every intended asset into it. Real estate may require a deed, financial accounts may require retitling, and other property may require an effective assignment.
A trust schedule may show intended assets but does not necessarily prove that titled property was transferred. A trust law review can compare the instrument with ownership records.
3. Compare the Plan with Later Family and Ownership Changes
Marriage, divorce, births, deaths, business changes, and later transfers may affect how an older plan operates. The key question is whether the documents still match the relationships and property existing at death.
A Power of Attorney Ends at Death
Under New York General Obligations Law § 5-1511, a power of attorney terminates when the principal dies. It may remain relevant to lifetime transactions but does not authorize the former agent to administer the estate.
Transactions shortly before death may require review of deeds, statements, transfer records, and dates to determine whether property left the decedent’s ownership during life.
Compare Business Interests with Company Agreements
A will may not determine what happens to a closely held business interest. An operating agreement, shareholders’ agreement, or buy-sell agreement may restrict transfer, create a purchase right, require consent, or set a valuation procedure.
The ownership interest should therefore be compared with relevant business succession documents.
4. Connect the Asset Review to the Correct Court and Tax Process
Once ownership and controlling documents are identified, probate, trust administration, and tax reporting can be separated. New York Surrogate’s Court procedure governs the estate proceeding, while federal and New York estate-tax rules address separate questions.
Use Monroe County Surrogate’S Court When Venue Is Proper
If the decedent was domiciled in Monroe County at death, the estate proceeding is generally brought in Monroe County Surrogate’s Court.
The county currently uses mandatory NYSCEF e-filing for probate, administration, small-estate, and related proceedings, subject to applicable exemptions. The original will has separate filing requirements even when the proceeding begins electronically. Broader administration issues fall within probate administration.
Assemble the Probate Record before Filing
A probate filing generally begins with the original will, a certified death certificate, a probate petition, and required supporting papers.
The petition may also require information about distributees, beneficiaries, assets, and people entitled to process or notice. The will alone may not identify every person whose legal interest must be addressed.
Keep Estate Tax Review Separate from Probate Status
Property outside probate can still matter for estate-tax purposes. The federal gross estate may include property transferred through beneficiary designations, joint ownership, trusts, or other arrangements.
For 2026 deaths, the federal basic exclusion amount is $15 million, while New York applies a separate $7.35 million basic exclusion amount. Federal and state filing obligations require separate analysis.
5. Frequently Asked Questions
Does a New York Will Need to Be Notarized?
Notarization is not one of the general execution requirements for a traditional New York will under EPTL § 3-2.1. The statute instead addresses the testator’s signature, declaration, and attestation by at least two witnesses.
An affidavit from the attesting witnesses may assist with proof during probate, but it is separate from the formalities required to execute the will.
What if the Person Named as Executor Does Not Want to Serve?
A person nominated as executor does not have to accept the appointment. Under SCPA § 1417, a nominated executor may renounce the right to letters testamentary through an acknowledged instrument filed with the court.
If a successor executor is named, that person may seek appointment. If no nominated executor can serve, another form of appointment may be required under Surrogate’s Court procedure.
6. When Attorney Review Can Clarify the Estate Plan
Attorney review may be useful when ownership records conflict with the estate plan, the original will is missing, trust property was never transferred, a minor is named directly, beneficiary records differ from expected distributions, or business interests are subject to separate transfer restrictions.
The objective is to identify which document, title, beneficiary record, or governing agreement controls before distributions or other difficult-to-reverse transfers occur.
28 Oct, 2026
