One of the most common questions families ask after losing a loved one — or when sitting down to do their own estate planning — is whether everything has to go through probate. It's an understandable concern. Probate has a reputation for being slow, expensive, and public. And in New York, that reputation is fairly well-earned.
The good news? No, not every estate has to go through probate. Whether yours does depends almost entirely on how your assets are titled and structured before you pass away. Understanding the difference can save your family months of waiting and thousands of dollars in legal and court fees.
What probate actually is (and why it matters)
Probate is the court-supervised process of validating a deceased person's will, paying outstanding debts, and distributing whatever remains to heirs. In New York, this happens through the Surrogate's Court in the county where the person lived.
For an uncontested estate in New York City, the process typically takes 9 to 18 months, according to LGK Lawyers. Brooklyn and Manhattan tend to run on the longer end of that range due to higher court volumes. Attorney fees usually run between 3% and 7% of the total estate value. On a $600,000 Brooklyn home, that's anywhere from $18,000 to $42,000 — just in legal fees.
Probate is also public. Anyone can look up the court filings, which means the details of what your family inherits become part of the public record. Many families find that uncomfortable.
With stakes that high, it makes sense to understand exactly when probate is required and when it can be sidestepped entirely.
Assets that go through probate
Probate is only required for assets held in a deceased person's name alone, with no designated beneficiary and no joint owner. If your bank account, your investment portfolio, or your house is titled only in your name when you die, those assets will need to pass through the Surrogate's Court before reaching your heirs.
This catches a lot of people off guard. They assume having a will means they've handled everything. A will actually triggers the probate process — it's the document the court uses to guide the distribution. Having a will does not avoid probate.
Assets that skip probate entirely
A significant portion of most estates can pass directly to loved ones without ever entering a courtroom. Here's how:
Accounts with beneficiary designations. Life insurance policies, IRAs, 401(k)s, and bank accounts with a Payable-on-Death (POD) or Transfer-on-Death (TOD) designation pass directly to whoever is named. The money moves to the beneficiary without court involvement, often within weeks of presenting a death certificate.
Jointly owned property. Property held as joint tenants with right of survivorship — or as tenants by the entirety, which is exclusive to married couples in New York — passes automatically to the surviving owner. This is common with family homes, though it comes with its own complications worth reviewing with an attorney. You can read more about the risks of property co-ownership before relying on this approach alone.
Assets held in a revocable living trust. When you transfer ownership of assets into a properly funded revocable living trust, those assets no longer belong to you personally at death — they belong to the trust. They pass to your beneficiaries according to the trust's terms, with no court involvement at all. This is the most flexible and widely used probate-avoidance strategy for New York families.
Small estates under $50,000. New York offers a simplified Voluntary Administration process for estates with $50,000 or less in personal property (excluding real estate). According to the New York State Unified Court System, this process requires only a small filing fee and an affidavit, making it far less burdensome than full probate.
The most important factor: how assets are titled
Probate doesn't depend on the size of your estate or whether you have a will. It depends on how each individual asset is owned at the time of death. A family can have a $1.5 million estate that avoids probate entirely if the assets were structured correctly — and a much smaller estate can end up in Surrogate's Court if nothing was planned ahead of time.
This is why estate planning for Brooklyn families isn't a one-time task. It requires reviewing how each asset is titled, keeping beneficiary forms updated, and making sure any trusts are actually funded — a step many people miss after creating one.
What a will does (and doesn't) do
A last will and testament is an important document. It names an executor, provides for minor children, and expresses your wishes clearly. But it does not protect your estate from probate. If anything, having a will is what initiates the probate process.
For families who want to keep assets out of court entirely, a revocable living trust combined with updated beneficiary designations is typically the more effective route. The trust handles real estate and financial accounts; beneficiary designations handle retirement accounts and life insurance. Together, they can cover the full picture.
For a deeper look at how New York's probate process works when it is required, the New York probate process from start to finish is worth reviewing before making any assumptions about what your family will face.
Planning now protects your family later
The families who benefit most from estate planning are those who act before a crisis. Once someone passes away, your options narrow dramatically. Assets are frozen in their existing form, and the only path forward may be through the Surrogate's Court.
At Alatsas Law Firm, we work with families throughout Brooklyn, Queens, and Staten Island to structure estates that reflect their wishes — not the defaults set by state law. Attorney Ted Alatsas has nearly 30 years of experience helping middle-income families avoid probate through practical, straightforward planning. Whether that means setting up a revocable living trust, updating beneficiary designations, or reviewing how your home is titled, the goal is the same: keeping your family out of court and your assets where they belong.
If you're not sure whether your current plan would require probate, that's exactly the kind of question worth asking now — before your family has to figure it out under pressure.
