NY Probate: Why a Will Isn’t Enough

How to Actually Avoid NY Probate in 2025

As a New York estate planning attorney with over 30 years of experience, I have seen the same tragedy strike countless families. A loved one passes away. The family gathers, grieving. They find the Last Will and Testament, breathe a sigh of relief, and think, “Thank goodness they had a will. Everything is taken care of.”

They are wrong. This is, without question, the single most dangerous misconception in New York estate planning. Here is the hard truth your family needs to hear: A Last Will and Testament does not avoid probate. It guarantees it.

A will is not a magic wand. It is, quite literally, a set of instructions *for the probate court*. It is a letter to a judge, and it is the price of admission to a long, expensive, and public court process. In New York, this process is handled by the Surrogate’s Court, a system that can be slow, costly, and emotionally draining for the families trapped within it.

At Morgan Legal Group, we believe our clients deserve the truth. We want you to avoid this “probate nightmare” entirely. This comprehensive 2025 guide will explain what probate truly is, why it is a disaster for your heirs, and what legal tools—specifically the Revocable Living Trust—you must use to *actually* protect your family, your privacy, and your legacy. Contact us to ensure your plan works.

What is “Probate”? A 30,000-Foot View

Probate is the formal, court-supervised legal process of managing a deceased person’s estate. Think of it as a state-mandated “financial autopsy.” The court’s job is to oversee four key tasks:

1. Validate the will (if one exists) and formally appoint the Executor.
2. Gather all the decedent’s assets into one “pot.”
3. Pay all legitimate debts, taxes, and expenses.
4. Distribute whatever is left to the rightful heirs and beneficiaries.

In New York, this process is managed by the Surrogate’s Court in the county where the person lived. If you live in Manhattan, your estate goes to the New York County Surrogate’s Court. If you live in Brooklyn, it goes to Kings County. Each has its own rules, its own backlogs, and its own unique frustrations.

Intestate vs. Testate: Two Paths to the Same Court

It is crucial to understand this distinction.

• Intestate (No Will): If you die without a will, you die “intestate.” New York State law (the EPTL) dictates who inherits your property in a rigid, one-size-fits-all formula. Your estate *must* go through a court process called “Administration.”
• Testate (With a Will): If you die *with* a will, you die “testate.” Your will names who you *want* to inherit your property. Your estate *must* go through the court process called “Probate.”

Notice the common denominator? Both paths lead directly to the Surrogate’s Court. A will simply gives you a voice in the proceeding. It does *not* let you skip the line, and it does *not* make the process private, fast, or cheap.

The Four Nightmares of New York Probate (And Why You Must Avoid It)

Clients often ask, “If probate is a normal court process, what’s so bad about it?” As Russel Morgan, Esq., I tell them the “process” is the problem. It is a system built on 19th-century procedures operating in a 21st-century world. It is inefficient by design. This inefficiency creates four distinct nightmares for the family you leave behind.

Nightmare #1: The Crushing Cost (Executor Fees & Attorney Fees)

Probate is expensive. The costs come from multiple sources, but the two largest are statutory executor commissions and attorney’s fees. In New York, your Executor is entitled to a *statutory commission* based on the value of the “probate estate.” This is set by law (SCPA § 2307) and is not negotiable.

The commission is calculated on a sliding scale:

• 5% on the first $100,000
• 4% on the next $200,000
• 3% on the next $700,000
• 2.5% on the next $4,000,000
• 2% on all amounts above $5,000,000

Let’s do the math. A “simple” estate with a $1.5 million Long Island home and $500,000 in stocks is a $2,000,000 probate estate.

• 5% of $100k = $5,000
• 4% of $200k = $8,000
• 3% of $700k = $21,000
• 2.5% of $1M = $25,000

Total Executor Commission: $59,000. This is a $59,000 bill paid to your executor (who may be a family member, or a professional if you name one) *just for managing the process*. On top of this, the estate must hire a probate attorney. These legal fees can easily equal or *exceed* the executor’s commission, often ranging from 3% to 7% of the estate’s total value. For our $2M estate, that $59,000 commission plus, say, $60,000 in legal fees means over $119,000 is vaporized. This is money that should have gone to your children.

Nightmare #2: The Infamous Delays (Assets are FROZEN)

In New York, probate is not fast. A “simple” and uncontested probate can take 9 to 12 months. If there is *any* complication—a creditor claim, a hard-to-find heir, a complex asset—it can easily drag on for 2 to 3 years. We have seen estates trapped in Surrogate’s Court for over a decade.

What does this mean for your family? Your assets are frozen. Your partner or children cannot sell the house. They cannot access your investment accounts. They cannot get to the money. The Executor has no legal authority to act until the court issues “Letters Testamentary,” which can take months. During this time, the house still needs to be maintained, taxes paid, and bills covered. Your family is left in a state of suspended animation, unable to move on or access the inheritance you left them.

Nightmare #3: It is 100% Public (A Scammer’s Goldmine)

This is the part that shocks most clients. Probate is a public court proceeding. Your Last Will and Testament becomes a public record. Anyone can go to the courthouse, request the file, and read it. They can see:

• A complete list of your assets and their values.
• The names and addresses of all your beneficiaries.
• The exact amount each person is inheriting.
• The names of your executor and attorney.

This is a goldmine for data miners, identity thieves, and scammers who prey on “new money.” It also exposes your family’s private affairs to nosy neighbors, estranged relatives, and anyone with a curious-but-malicious intent. In an age of identity theft, making your family’s financial blueprint public is a terrifying and unnecessary risk.

Nightmare #4: It Invites a Contest (Destroying Families)

A will is a piece of paper. The probate proceeding is the formal *forum* where that piece of paper can be challenged. When you file a will, all “interested parties” (your legal next-of-kin) must be notified. This includes the disinherited son or the estranged cousin you have not seen in 20 years.

You are, in effect, sending them a legal invitation to come to court and fight. They can file a “Will Contest” on many grounds:

• Lack of Capacity: “Mom didn’t know what she was signing.”
• Undue Influence: “My sister forced Dad to cut me out.”
• Improper Execution: “The signatures weren’t witnessed correctly.”

Whether these claims have merit is irrelevant. The *act* of filing the contest grinds the entire estate to a halt. It triggers years of brutal, expensive litigation (paid for by the estate) that pits family members against each other. This is how inheritances are destroyed and family relationships are permanently severed. A will contest is a lawsuit, and probate is the arena it happens in.

Case Study: The “Simple” Bronx Estate That Exploded

Let’s look at a real-world example we handled. Maria, a widow in the Bronx, passed away. She had a valid will. Her estate was “simple”: a $750,000 home and $150,000 in a bank account. Her will left everything equally to her three children: Peter, Paul, and Lisa.

Sounds easy, right? Here is what happened:

1. Peter was named Executor. He filed the will for probate. The process took 4 months just to get him appointed.
2. During that time, the home’s utilities and property taxes (over $8,000) came due. Peter had to pay them from his *own pocket* and hope to be reimbursed later.
3. Once appointed, Peter discovered a $25,000 credit card debt Maria had hidden. This debt had to be paid first.
4. Then, the conflict began. Lisa lived in the house and refused to move out, claiming Mom “promised” she could live there. Peter and Paul wanted to sell the house and get their inheritance.
5. Lisa hired a lawyer to contest the will, claiming Peter “unduly influenced” Maria. This was false, but it froze the estate for 18 months.
6. After $45,000 in legal fees (paid by the estate), the contest was dropped. But Lisa *still* refused to leave.
7. Peter, as Executor, had to file a separate *eviction* proceeding against his own sister in housing court.

The Result: It took three years and over $70,000 in executor fees, legal fees, and court costs to settle a “simple” $900,000 estate. The three children no longer speak to each other. Every single one of these problems would have been avoided with a Revocable Living Trust.

How to *Actually* Avoid Probate: Non-Probate Transfers

If probate is the problem, the solution is to make your assets “non-probate.” A non-probate asset is one that passes automatically to a new owner at your death, by operation of law, without court intervention. There are two main categories of these.

Category 1: The “Easy Wins” (Beneficiary Designations)

These are the simplest tools. They are powerful but limited.

• Life Insurance & Retirement Accounts: Your IRAs, 401(k)s, and life insurance policies all have beneficiary designation forms. The person you name on that form gets the money. Period. It does not matter what your will says. These assets bypass probate entirely.
• “Payable on Death” (POD) Bank Accounts: You can go to your bank and add a POD designation to your checking or savings account. When you die, your beneficiary just needs to show a death certificate to get the money.
• “Transfer on Death” (TOD) Brokerage Accounts: New York law allows you to name a TOD beneficiary on your stock and investment accounts. This works just like a POD account.

The Problem with “Easy Wins”: These tools are great, but they are a very incomplete plan. They do nothing to protect you during incapacity. They do not handle your house. And if your beneficiary is a minor, you have just created a new legal nightmare requiring a guardianship.

Category 2: The “DIY Traps” (Dangerous Shortcuts)

These are strategies people try to use to avoid probate. They are, in a word, disastrous.

TRAP #1: Adding a Child to Your Deed (Joint Tenancy)

This is the most common and most devastating mistake. A client in Queens thinks, “I’ll just add my son to the deed of my house. When I die, he’ll own it automatically.” This is called “Joint Tenancy with Right of Survivorship.” It *does* avoid probate. But it opens you up to a world of new dangers.

You Expose Your Home to Their Creditors

The moment you add your son to your deed, he is a 50% legal owner. Your home is now *his* asset. What does this mean?

• If your son gets divorced, his spouse can claim an interest in *your* home.
• If your son is in a car accident and gets sued, a judgment creditor can place a lien on *your* home.
• If your son has tax problems or files for bankruptcy, *your* home is at risk.

You have just put your single largest asset on the line for your child’s financial problems.

The Catastrophic Tax Consequence (Loss of “Step-Up”)

This is the financial “gotcha.” When you *inherit* property, you get a “step-up in basis” to the value on the date of death. This means your child can sell the house and pay zero capital gains tax.

When you *gift* them half the house by adding them to the deed, they also get your *original cost basis*.

• Example: You bought your home in 1985 for $100,000. It’s now worth $1,100,000.
• RIGHT WAY (Inherit): You die. Your son inherits it at $1.1M. He sells it for $1.1M. His capital gain is $0.
• WRONG WAY (Deed): You add him to the deed. You die. He sells it for $1.1M. His basis is your old $100,000 basis. He has a $1,000,000 capital gain. He will owe over $250,000 in federal and state taxes.

This “simple” shortcut just cost your child a quarter-million dollars.

You Lose Control

Your son is now a co-owner. You cannot sell your house, refinance your mortgage, or even take out a home equity line of credit without his written, notarized signature. You have given up 100% of your autonomy over your own home.

TRAP #2: Relying on a Power of Attorney

A Power of Attorney (POA) is a vital document. It gives your chosen “agent” the power to handle your finances *while you are alive*. It is a key part of an incapacity plan. However, a Power of Attorney is 100% invalid the *second* you die. Its legal authority terminates at death. It has *zero* power to transfer assets or avoid probate. Do not confuse a POA with a proper estate plan.

The Gold Standard: The Revocable Living Trust (The *Real* Solution)

Now we arrive at the “gold standard.” The one tool that *actually* avoids probate, protects you during incapacity, and keeps your affairs 100% private. This tool is the Revocable Living Trust.

A trust is not just for the ultra-wealthy. It is for *anyone* in New York who owns a home and wants to protect their family from the Surrogate’s Court. A trust is a private legal contract. Think of it as an empty “box.” You (the “Grantor”) create this box. You name yourself as the “Trustee” (the manager). And you “fund” the box by transferring your assets into it (like re-titling your house into the name of the trust).

While you are alive, you have 100% control. You can buy, sell, and manage the assets just as you did before. But here is the magic:

Benefit 1: It Avoids Probate Completely

When you pass away, you do not personally “own” the assets. The *trust* owns them. And the trust does not die. Your hand-picked “Successor Trustee” (e.g., your responsible child) immediately steps into your shoes as the manager. They read the private instructions in your trust and distribute the assets to your beneficiaries. There is no court. No judge. No petition. No public filing. It is 100% private and 100% efficient.

Benefit 2: It Solves the “Incapacity” Problem (Avoiding Guardianship)

This benefit is just as important as probate avoidance. What if you have a stroke and do not die? A will does *nothing*. A POA can be rejected by banks. Your family would be forced to file a humiliating and expensive “Article 81” Guardianship proceeding to have you declared incompetent by a court.

A trust avoids this. The trust document states that if you are certified incapacitated by your doctors, your Successor Trustee *immediately* has the authority to step in and pay your bills and manage your assets. It is a seamless, private transition of power, with no court involved.

Benefit 3: It is 100% Private and Contest-Proof

Remember the probate nightmare? A trust is the opposite.

• It’s Private: A trust is a private family document. It is never filed with the court. No one can see your assets or who you left them to.
• It Deters Contests: You cannot “invite” people to contest a trust. A disinherited relative would have to find out about the trust on their own, hire their own lawyer, and pay to file a brand-new lawsuit. It is infinitely harder, more expensive, and less likely to succeed than contesting a will in probate.

Trust vs. Will: A Side-by-Side Comparison

The choice for New Yorkers is clear. A will is a 20th-century tool. A trust is the 21st-century solution.

Feature	Last Will & Testament	Revocable Living Trust
Avoids Probate?	No. It guarantees probate.	Yes. 100% for all funded assets.
Privacy?	No. It is a public record.	Yes. 100% private.
Cost to Settle?	High (3-7% of estate).	Very low.
Speed to Settle?	Very slow (9 months – 2+ years).	Very fast (weeks).
Protects from Incapacity?	No. A will only works at death.	Yes. Avoids guardianship.
Deters Contests?	No. It invites them.	Yes. Makes them very difficult.

“Funding” Your Trust: The Most Critical Step

Signing your trust document is not the end of the process. It is the beginning. A trust is an empty box. You must “fund” it by transferring your assets into its name. This is the step where DIY planning fails 99% of the time. An experienced estate planning firm like ours manages this entire process.

• Real Estate: We prepare and file a new deed, transferring your home from “John Smith” to “John Smith, as Trustee of the John Smith Revocable Trust.”
• Bank Accounts: We help you re-title your bank accounts into the name of the trust.
• Brokerage Accounts: We work with your financial advisor to change the legal owner to the trust.
• NY Co-ops: This is a highly complex area. Funding a co-op into a trust requires special board approval and “Aztech” forms. This is a key sign of an expert NY attorney, and our firm handles this every day.

An unfunded trust is a worthless piece of paper. A funded trust is a private, ironclad fortress that protects your family from the Surrogate’s Court.

Frequently Asked Questions About Avoiding Probate in NY

Q1: If I have a Revocable Trust, do I still need a Will?

Yes. We always draft a special “Pour-Over Will” alongside your trust. This will acts as a safety net. It says, “If I forgot to put anything into my trust, I direct my Executor to ‘pour’ that asset over into my trust.” That asset *will* go through probate, but the will ensures it ultimately lands in the right place, governed by the private terms of your trust.

Q2: Isn’t a trust very expensive to set up?

This is a “pay now or pay later” problem. A trust has a one-time setup cost. But as we showed, the cost of probate is *far* greater, consuming 3-7% of your *entire estate*. A $2,000,000 estate could pay $120,000+ in probate fees. A trust costs a tiny fraction of that. It is an investment that saves your family a fortune.

Q3: Does a Revocable Trust protect my home from Medicaid?

No. This is a critical distinction. A Revocable Trust avoids probate but does *not* protect your assets from Medicaid or long-term care costs. For that, you need an Irrevocable Trust, which is a key tool in elder law planning. Schedule a consultation, and we can determine which type of trust is right for your goals.

Q4: My estate is small. Do I still need to worry about probate?

New York does have a “Small Estate” proceeding (Voluntary Administration) for estates under $50,000 (as of 2025). This is a simplified process. However, if you own *any* real estate—even a $150,000 condo in Buffalo—you are *not* eligible. You will be forced into the full, formal probate process. For virtually all homeowners, a trust is the only answer.

Q5: Can I still sell my house if it’s in my Revocable Trust?

Yes, 100%. As the Grantor and Trustee, you retain full control. You sign the sales contract as “John Smith, Trustee.” The check is made out to the trust. You can buy, sell, mortgage, and refinance just as you always have. Nothing changes until your death or incapacity.

Do Not Leave Your Family a Lawsuit

Your will is a well-intentioned document. You wrote it because you love your family and want to protect them. The tragedy is that in New York, that very document is what will drag them into a public, expensive, and stressful court battle.

You have the power to change that outcome. By moving your assets into a Revocable Living Trust, you take back control. You make your estate 100% private. You save your family tens of thousands of dollars. And you give them the gift of an immediate, seamless transition during their time of grief. You do not leave them a file in a courthouse; you leave them a protected legacy.

Contact Morgan Legal Group Today

The time to fix your plan is now, while you are healthy and in control. Do not wait for a crisis. As you can see from our Google reviews, our clients feel a profound sense of relief once this is done. Schedule a consultation with the 30-year expert team at Morgan Legal Group. We serve clients across New York State, from Rochester to all five boroughs of NYC. Let us show you how to *actually* protect your family.

For more information on New York’s probate code, you can review the official Surrogate’s Court Procedure Act (SCPA).

The post NY Probate: Why a Will Isn’t Enough appeared first on Morgan Legal Group PC.