What Every New Yorker Must Know About Probate in 2025-2026
In my 30 years as a New York estate planning and probate attorney, no legal term inspires more fear and confusion than “probate.” Clients often come to my office with a single, urgent goal: to keep their family out of probate. They have heard the horror stories from friends or relatives—tales of assets frozen for years, of staggering legal fees, and of private family matters becoming a public spectacle. In most cases, their fears are entirely justified.
Probate is the default legal process for handling an estate in New York. It is the system the state has created for you. However, it is not a system you are required to use. Understanding the basics of probate is the first and most critical step in learning how to avoid it. This knowledge is more urgent now, in 2025, than ever before. We are on the precipice of a massive, legislated change to the federal estate tax—the “2026 tax cliff”—that will fundamentally alter the financial consequences of a public probate proceeding.
This comprehensive guide will demystify the New York probate process. We will explore what it is, how it works, what it costs, and why a 2025-2026 review of your plan is absolutely essential. At Morgan Legal Group, we believe that a truly secure legacy is built on knowledge.
What is Probate in New York?
Probate is the formal, court-supervised legal process of validating a deceased person’s will, paying their debts, and distributing their remaining assets to their heirs. In New York, this entire process is overseen by the Surrogate’s Court in the county where the deceased person (the “decedent”) lived. If you lived in Brooklyn, your estate will be probated in the Kings County Surrogate’s Court. If you lived in Westchester, it will be the Westchester County Surrogate’s Court.
The Most Common Misconception: “I Have a Will, So I’ll Avoid Probate.”
This is the single most dangerous myth in estate planning. The truth is the exact opposite. A Last Will and Testament does not avoid probate; it guarantees it. A will is, quite literally, a set of instructions for the probate court. It is a letter to the Surrogate’s Court judge telling them who you want to be in charge (your “Executor”) and who should get your assets. The will has no legal power until the judge reviews it, declares it valid, and formally appoints your Executor. Therefore, a plan that relies only on a will is, by definition, a probate-bound plan.
Probate vs. Non-Probate Assets: The Core Concept
The probate process only applies to “probate assets.” Understanding this distinction is the key to understanding all of estate planning. The Surrogate’s Court only has jurisdiction over assets that were owned by the decedent in their sole name at the time of their death.
What are Probate Assets?
These are assets that are “stuck” in the decedent’s name and require a court order (the “Letters Testamentary”) to be transferred. Examples include:
- A bank or brokerage account in your name alone.
- A house, condo, or co-op titled in your name alone.
- A car, artwork, or other personal property with no co-owner.
- An interest in a business (like an LLC) held in your sole name.
What are Non-Probate Assets?
These are assets that pass automatically to a new owner by “operation of law,” without any court intervention. They are invisible to the probate court. The most common examples are:
- Assets in a Revocable Living Trust: This is the most powerful probate-avoidance tool. Any asset you have titled in the name of your trust is not part of your probate estate.
- Jointly Owned Property: Property owned as “Joint Tenants with Right of Survivorship” (JTWROS) automatically passes to the surviving joint owner. This is common for a marital home.
- Assets with Beneficiary Designations: These are contractual assets that pass directly to the person you named on the form. This includes:
- Life insurance policies.
- Retirement accounts (IRAs, 401(k)s, 403(b)s).
- “Payable-on-Death” (POD) bank accounts.
- “Transfer-on-Death” (TOD) brokerage accounts.
The goal of a modern estate planning attorney is to structure your assets to be “non-probate” to the greatest extent possible, primarily through the use of a Revocable Living Trust.
The New York Probate Process: A Step-by-Step Guide
When clients ask me to handle a probate, they are often shocked by how many steps are involved and how long each one takes. This is the process you are choosing to avoid.
Step 1: Filing the Probate Petition
The person named as Executor in the will must hire a probate attorney. The attorney then prepares a “Probate Petition” and files it with the Surrogate’s Court, along with the original will and a certified death certificate. This petition asks the court to formally accept the will as valid and to appoint the Executor.
Step 2: Notifying Heirs (Issuing “Citations”)
The court requires that all of the decedent’s legal “next of kin” (called “distributees”) be formally notified of the probate proceeding. These are the people who would have inherited if there were no will. The court issues a legal notice called a “Citation,” which must be personally served on these relatives. This gives them a legal opportunity to object to the will. This step alone can take weeks or months, especially if an heir lives out of state or is hard to find.
Step 3: The Will Contest (The Great “What If”)
This is where the process can grind to a halt. If a disgruntled relative feels they were unfairly cut out, they can file a “will contest.” This is a full-blown lawsuit within the probate case. They may claim:
- Lack of Testamentary Capacity: The decedent was not of sound mind.
- Undue Influence: Someone (like a child or a new spouse) forced the decedent to change the will.
- Improper Execution: The strict legal ceremony for signing the will was not followed.
- Fraud or Elder Abuse: The will was signed under false pretenses.
A will contest can freeze the estate for years and drain hundreds of thousands of dollars in legal fees, all while tearing the family apart. This is a primary risk of a will-based plan.
Step 4: Issuance of Letters Testamentary
If no one objects (or after a contest is resolved), the judge will sign a decree granting probate. The court then issues “Letters Testamentary.” This is the one-page legal document that is the “golden ticket.” It is the Executor’s official proof of authority to act on behalf of the estate. No bank or financial institution will speak to an Executor without this document.
Step 5: Marshalling Assets and Paying Debts
Now the Executor’s real work begins. They must find and secure every single probate asset. This involves opening a new “Estate Account,” transferring all cash, liquidating stocks, and securing real estate (like a co-op in Queens or a house in Long Island). They must also publish a notice to potential creditors and pay all of the decedent’s valid final debts, bills, and expenses.
Step 6: Filing Tax Returns (The 2025-2026 Problem)
The Executor is legally responsible for filing all required tax returns. This includes the decedent’s final income tax return and, more importantly, any estate tax returns. In New York, an NYS Estate Tax Return (ET-706) is required for all estates over $6.94 million (as of 2025).
Here is the 2025-2026 urgency: With the federal exemption dropping in 2026, millions of New York estates will also be required to file a federal estate tax return (Form 706) for the first time. The Executor is responsible for this complex, 70+ page filing and for paying any tax due.
Step 7: Accounting and Distribution
After all assets are gathered and all debts and taxes are paid, the Executor must prepare a final “Accounting.” This is a detailed financial report, like a checkbook, showing every penny that came into and went out of the estate. This accounting must be provided to all beneficiaries for their approval. If they refuse to sign off, the Executor must file a formal (and expensive) judicial accounting with the court. Only after this final step can the Executor finally distribute the remaining assets to the beneficiaries and close the estate.
What if I Die Without a Will? (Intestacy)
If you die without a will, you do not avoid probate. You get a different, often worse, version of it called an “Administration.” Your estate is “intestate.” In this case, New York’s EPTL (Estates, Powers and Trusts Law) provides a rigid, one-size-fits-all formula for who inherits your assets. This is called the “law of intestacy.”
New York’s Intestacy Rules:
- If you have a spouse and no children: Your spouse inherits 100%.
- If you have a spouse and children: Your spouse gets the first $50,000 of your assets, plus one-half (50%) of the remaining estate. Your children get the other 50%.
- If you have children and no spouse: Your children inherit 100%, divided equally.
- If you have parents and no spouse or children: Your parents inherit 100%.
- If you have siblings and no spouse, children, or parents: Your siblings inherit 100%.
This formula is disastrous for many modern families. It makes no provision for an unmarried partner, a stepchild, or a close friend. The 50/50 split between a spouse and children can be devastating, potentially forcing the sale of a family home. Furthermore, instead of an Executor, the court appoints an “Administrator” (usually the closest living relative), who may not be the person you would have trusted with your finances. This process is often more complicated than probate because there is no will to guide the court. This is a common intersection with our family law practice.
The True Costs of Probate: Why You Must Avoid It
When you understand the basics, it becomes clear why probate avoidance is the primary goal of modern estate planning. The true costs are staggering.
1. The Financial Cost (The 3-7% Drain)
Probate is expensive. There are court filing fees, appraisal fees, and potential bond premiums. Most significantly, there are Executor’s commissions (a statutory fee based on the estate’s value) and legal fees, which are often billed hourly. It is common for the total cost of probate to consume 3% to 7% of the gross value of the probate estate. On a $1.5 million estate, that could be $45,000 to $105,000 in fees, all of which could have been avoided.
2. The Time Cost (The 9-18+ Month Delay)
In New York, even a “simple” and “uncontested” probate proceeding takes 9 to 18 months from start to finish. If there is a will contest or a complex asset (like a business or a New York co-op), it can easily take 2-3 years. During this time, your assets are frozen, your beneficiaries cannot get their full inheritance, and your family is stuck in legal limbo.
3. The Privacy Cost (A Public Record)
This is the most shocking part for most clients. Probate is a public court proceeding. This means your will, your petition, and the inventory of your assets all become public record. Anyone can go to the Surrogate’s Court and see who you left your money to, what you owned, and how much it was worth. In 2025, this is a massive security risk. It’s a roadmap for data miners, salespeople, and predators to target your grieving family members.
The 2026 Tax Cliff Connection: Privacy is Now a Financial Strategy
This “public record” problem is why probate is so dangerous in the 2025-2026 landscape. When the federal exemption drops, an estate worth, for example, $8 million will suddenly be a taxable event. A public probate filing for an $8 million estate is a flashing neon sign for the IRS. It provides them with a publicly filed, itemized list of every asset, making an audit incredibly easy. A plan that avoids probate, by contrast, is 100% private. The administration of a trust is a private family matter, not a public court record. This privacy is now one of your single most powerful tax-defense strategies.
The Solution: A Trust-Based Plan Avoids Probate Entirely
The solution to all these problems is a properly drafted and funded Revocable Living Trust. A trust is a private document that holds your assets. While you are alive, you control it completely as the Trustee. When you pass away, your hand-picked “Successor Trustee” (e.g., your child, or a professional like Russel Morgan) steps in and administers the estate according to your private instructions. There is no court, no delay, and no public record. It is the gold standard for a reason.
Probate vs. Incapacity: The “Living Probate”
Finally, “probate” is what happens when you die. What happens if you become incapacitated? If you only have a will, you have no plan for incapacity. Your family will be forced to go to Surrogate’s Court to file an Article 81 Guardianship proceeding. This is a public, expensive, and humiliating process—a “living probate”—where a judge decides if you are incompetent and appoints someone to manage your affairs. A proper estate plan avoids this with two key documents: a Durable Power of Attorney for finances and a Health Care Proxy for medical decisions. This is a core part of our NYC Elder Law and estate planning services.
Conclusion: Don’t Let the State Decide
Understanding the basics of probate is simple: it is the default system, and it is broken. It is a slow, costly, and public process that adds to your family’s burden. A will guarantees you will end up in probate. Intestacy is even worse.
In 2025, with a massive tax change on the horizon, choosing a plan that avoids probate is no longer a luxury; it is a financial necessity. A comprehensive, trust-based plan designed by an experienced New York attorney is the only way to ensure your legacy is private, protected, and passed to your loved ones efficiently and intact. The choice is yours. Do not leave your family’s future to the default system.
We invite you to get in touch with Morgan Legal Group. Schedule a consultation today to discuss how we can build a plan that keeps you and your family out of court. For more high-authority information on the court process, you can review the New York State Unified Court System’s guide to probate.
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