How to Avoid Probate in New York

By Albert Goodwin, Esq., attorney admitted in New York. Law Offices of Albert Goodwin, Midtown Manhattan. Last reviewed 2025.

Probate in New York is the Surrogate's Court proceeding that validates a will and gives the executor authority to collect and distribute the estate. If there is no will, the equivalent proceeding is administration. Both are governed by the Surrogate's Court Procedure Act (SCPA). Avoiding probate means arranging your assets so that each one passes by its own legal mechanism at death, with no court petition required for that asset.

This page is the hub for probate avoidance in New York. It covers the statutes that control each mechanism, the asset-by-asset method, and the assets that end up in Surrogate's Court even when the owner thought they had planned around it. The advantages of a revocable trust are covered on our page on the benefits of a living trust, and the rules on which assets can be placed in one are on what can and cannot go into a revocable trust. This page does not repeat that material.

What probate costs in New York

The court filing fee for a probate or administration petition is set by SCPA 2402 and depends on the gross value of the probate estate:

• Under $10,000: $45
• $10,000 to under $20,000: $75
• $20,000 to under $50,000: $215
• $50,000 to under $100,000: $280
• $100,000 to under $250,000: $420
• $250,000 to under $500,000: $625
• $500,000 and over: $1,250

The filing fee is the smallest part of the expense. Executor commissions under SCPA 2307 run 5% on the first $100,000 of principal received and paid out, 4% on the next $200,000, 3% on the next $700,000, 2.5% on the next $4,000,000, and 2% above $5,000,000. Attorney fees are separate. Non-probate assets are excluded from the commission base and from the SCPA 2402 fee calculation, so moving assets outside the estate lowers both.

Time is the other cost. Even an uncontested Manhattan or Brooklyn probate commonly takes several months before letters issue, and longer if a distributee must be located or served by publication. See our sample NYC probate timeline for the sequence of steps.

Step one: check whether the estate already qualifies as a small estate

Before restructuring anything, measure the estate against SCPA Article 13. Under SCPA 1301, if a decedent's personal property (after setting aside exempt property under EPTL 5-3.1) does not exceed $50,000, the estate qualifies for voluntary administration. A family member files a short affidavit, pays a $1 filing fee under SCPA 2402(7), and receives certificates to collect the assets. There is no full petition, no citation to distributees, and no bond.

Two limits matter. First, the $50,000 figure counts only personal property: bank accounts, securities, vehicles above the exemption, and similar assets that would otherwise pass through probate. Assets that already have a beneficiary designation or a joint owner do not count. Second, real property owned solely by the decedent disqualifies the estate from voluntary administration regardless of value. For most New Yorkers, the house or apartment is therefore the asset that forces a full probate, and the asset to plan around first.

The mechanisms New York law recognizes

New York has no single probate-avoidance statute. Each asset class has its own:

• Transfer-on-death deed for real property: Real Property Law 424, enacted in 2024.
• Survivorship ownership: EPTL 6-2.2 for tenancy by the entirety and joint tenancy; Banking Law 675 for joint bank accounts.
• Totten trust (in-trust-for) bank accounts: EPTL 7-5.1 through 7-5.7.
• Transfer-on-death securities registration: EPTL 13-4.1 through 13-4.12, New York's version of the Uniform TOD Security Registration Act.
• Beneficiary designations on retirement plans, annuities and life insurance: recognized as non-testamentary under EPTL 13-3.2.
• Revocable lifetime trust: created and funded under EPTL 7-1.17 and 7-1.18.

Asset by asset: the New York mechanism and the common mistake

• House, condo or land: Record a transfer-on-death deed under RPL 424, deed the property to the trustee of a revocable trust, or hold it as tenants by the entirety with a spouse. Mistake: a deed to the trust that is signed but never recorded with the county clerk, which leaves title in the decedent's name.
• Co-op apartment: Co-op shares are personal property, not real property, so a TOD deed does not apply. Transfer the shares and proprietary lease to a revocable trust with board approval, or hold with a spouse as tenants by the entirety under EPTL 6-2.2(c). Mistake: assuming the board will approve a trust transfer after death; most require approval during life.
• Checking and savings accounts: Title the account "in trust for" a named beneficiary under EPTL 7-5.1, or retitle to the trust. Mistake: adding a child as joint owner for convenience, which creates a survivorship presumption under Banking Law 675 and may disinherit the other children.
• Brokerage accounts, stocks, bonds: Register the account in TOD form under EPTL 13-4, or retitle to the trust. Mistake: TOD registration on one account at one firm, while the account at a second firm remains in the owner's sole name.
• IRAs, 401(k)s, annuities: Name primary and contingent beneficiaries on the plan's own form. Do not retitle to a revocable trust during life; that is a taxable distribution. Mistake: naming the estate, or leaving the form blank, which sends the account into probate and usually shortens the payout period.
• Life insurance: Name primary and contingent beneficiaries with the carrier, or name the trust. Mistake: a beneficiary who predeceased the insured and was never replaced.
• Vehicles: New York offers no transfer-on-death vehicle registration. Title the vehicle in the trust, or rely on the EPTL 5-3.1 exemption: a surviving spouse or children under 21 may claim one vehicle worth up to $25,000 by filing DMV form MV-349.1, with no court involvement. Mistake: a second vehicle, or a vehicle worth more than $25,000, which must pass through the estate.
• LLC or corporate interest: Assign the membership interest or shares to the trust, and confirm the operating agreement or shareholders' agreement permits a trust as owner. Mistake: an operating agreement that restricts transfers and was never amended.
• Tangible personal property (furniture, art, jewelry): Execute a written assignment of tangible personal property to the trust. Mistake: relying on a list attached to the trust without an assignment; EPTL 7-1.18 requires an actual transfer.
• Digital assets and cryptocurrency: Hold on an exchange account with a beneficiary designation where offered, or document keys and transfer custody to the trustee. Mistake: assets no one can find or access.

Real estate in New York

The transfer-on-death deed (Real Property Law 424)

For many years New York had no transfer-on-death deed, and homeowners who wanted to keep real property out of probate had to use a trust or a life estate deed. That changed in 2024 when the Legislature adopted RPL 424, effective July 19, 2024. The owner signs a deed naming one or more beneficiaries, acknowledges it before a notary, has it signed by two witnesses, and records it with the county clerk before death. The deed transfers nothing during life. The owner keeps full ownership, can sell or mortgage the property, and can revoke the deed by recording a revocation or a later inconsistent deed. The beneficiary takes no interest until the owner dies, and takes the property subject to any mortgage or lien.

Because the statute is new, title insurers and county clerks are still developing practices for accepting these deeds and insuring title in the beneficiary. Anyone relying on a TOD deed should confirm the recording was accepted and should expect a title company to review the chain carefully at the beneficiary's later sale.

Tenancy by the entirety and joint tenancy (EPTL 6-2.2)

A deed to a married couple creates a tenancy by the entirety unless it states otherwise (EPTL 6-2.2(b)). On the first death the survivor owns the property outright by operation of law, and a certified death certificate recorded with the clerk is all that is needed. The same rule has applied to co-op shares held by spouses since 1996 (EPTL 6-2.2(c)). Tenancy by the entirety also protects the property from a creditor of one spouse alone during the marriage.

For unmarried co-owners, New York presumes a tenancy in common, which does not avoid probate. The deed must expressly say "as joint tenants with right of survivorship" (EPTL 6-2.2(a)). Survivorship ownership only defers probate to the second death, and adding a non-spouse to a deed is a completed gift that exposes the property to that person's creditors and divorce, and starts the Medicaid look-back clock. See putting a house in two names for the full discussion.

Life estate deed

New York does not recognize the enhanced life estate or "Lady Bird" deed used in some other states. A conventional life estate deed, in which the owner conveys the remainder to children and reserves a life estate, does avoid probate. The cost is control: the owner cannot sell or refinance without the remaindermen's signatures, and the remainder is a gift for Medicaid transfer-penalty purposes. With a TOD deed now available, the life estate deed is used mainly where the owner is doing Medicaid planning and wants the five-year look-back running.

Deed to a revocable trust

A trustee deed is still the right tool for owners with property in more than one state, owners who want management during incapacity, and owners who want to control how and when heirs receive the property. The deed must be recorded. Mortgage lenders generally cannot call a loan because of a transfer to a revocable trust where the borrower remains a beneficiary, and homeowners should confirm the STAR exemption and homeowner's insurance follow the property into the trust. See our New York trust attorney page for drafting.

Bank accounts in New York

Totten trust accounts (EPTL 7-5.1)

A deposit titled "John Smith in trust for Mary Smith" or "John Smith ITF Mary Smith" is a Totten trust, which New York codified in EPTL Article 7, Part 5. The depositor owns the money during life, can withdraw it all, and can change the beneficiary by changing the account title. On death the balance belongs to the named beneficiary (EPTL 7-5.2), who collects it with a death certificate and identification. The account is still counted in the depositor's taxable estate and is reachable by the depositor's creditors and funeral expenses if the probate estate is insufficient (EPTL 7-5.6). A will cannot change the beneficiary unless it specifically identifies the account and the beneficiary (EPTL 7-5.2(2)).

Many New York banks also offer accounts labeled "payable on death." Functionally these are treated the same way, but confirm with the bank how the account is titled on its records, because the branch label and the legal title sometimes differ.

Joint accounts and convenience accounts

Banking Law 675 presumes that an account opened in two names, payable to either or the survivor, is a joint tenancy, and the survivor keeps the balance. That presumption can be rebutted by proof the account was opened only for convenience, but litigating it means a turnover proceeding in Surrogate's Court, which is the very thing the family was trying to avoid. New York created the convenience account under Banking Law 678 for the parent who wants a child to pay bills: the child can sign, and the balance passes to the estate or to a named beneficiary rather than to the child. Our pages on bank accounts with no beneficiary in New York and whether joint accounts are taxed cover the consequences in more detail.

Two warnings apply to any joint account with a non-spouse. Adding a joint owner is treated by Medicaid as a transfer of the portion the new owner can withdraw, which can create a penalty period if the parent applies for nursing home coverage within sixty months. And the joint owner's judgment creditors can restrain the account under CPLR 5222, forcing the parent to prove the funds are hers.

Securities and brokerage accounts (EPTL 13-4)

New York adopted the Uniform Transfer on Death Security Registration Act in 2005, codified at EPTL 13-4.1 through 13-4.12. A brokerage account or individual security may be registered in beneficiary form, for example "John Smith TOD Mary Smith" (EPTL 13-4.5). The owner keeps control, and the beneficiary has no rights until death (EPTL 13-4.8). On death the broker reregisters the securities to the beneficiary on proof of death (EPTL 13-4.9). The statute protects the broker who acts on the registration (EPTL 13-4.10), but a TOD registration does not cut off the estate's creditors or the surviving spouse's right of election under EPTL 5-1.1-A; the beneficiary may have to contribute.

TOD registration is only available if the brokerage firm offers it. Most do. Check each account separately, including dividend reinvestment plans and stock held directly with a transfer agent, which are often missed.

Retirement accounts and life insurance

IRAs, 401(k)s, 403(b)s, pensions, annuities and life insurance pass by the beneficiary form on file with the plan or carrier. EPTL 13-3.2 confirms these designations are not testamentary and need no will formalities. A will cannot override them. For a married participant in an employer plan governed by ERISA, the spouse is the default beneficiary, and naming anyone else requires the spouse's notarized consent on the plan's form.

Review every form for three things: a living primary beneficiary, at least one contingent beneficiary, and no designation of "my estate." A retirement account payable to the estate goes through probate, and the estate as beneficiary generally must empty an inherited IRA within five years (or over the decedent's remaining life expectancy if death occurred after the required beginning date), losing the ten-year or longer stretch an individual beneficiary would have under the SECURE Act. Naming a trust as retirement account beneficiary is possible but the trust must be drafted to qualify as a see-through trust; do not do this without counsel.

Vehicles

New York's Department of Motor Vehicles does not offer transfer-on-death titling. A vehicle in the decedent's sole name is a probate asset with two exceptions. First, under EPTL 5-3.1(a)(5), one motor vehicle worth up to $25,000 is exempt property that passes to the surviving spouse, or to children under 21 if there is no spouse, outside the estate; the DMV processes this on form MV-349.1 with a death certificate and the title. Second, a vehicle can be counted in a small estate under SCPA Article 13 and transferred with the voluntary administrator's certificate. For a valuable or additional vehicle, title it in the name of the revocable trust while the owner is alive.

Funding a revocable trust in New York: the checklist

A revocable trust avoids probate only for the assets actually in it. EPTL 7-1.17 requires the trust to be in writing, signed by the creator, and either acknowledged before a notary like a deed or signed in front of two witnesses; a trustee other than the creator must also sign. EPTL 7-1.18 then provides that the trust is valid only as to property actually transferred to it: real property by recorded deed, other property by assignment or retitling. A schedule of assets attached to the trust does not transfer anything.

1. Record a deed from the owner to the trustee for each parcel of New York real property, with the TP-584 and RP-5217 transfer forms. A transfer to a revocable trust for no consideration is generally exempt from transfer tax, but the forms must still be filed.
2. Obtain co-op board consent and reissue the stock certificate and proprietary lease to the trustee.
3. Retitle each bank account to the trustee, or convert it to an in-trust-for account naming the trust as beneficiary.
4. Retitle each brokerage account, or register it TOD to the trust.
5. Leave retirement accounts in the owner's name and update the beneficiary forms instead.
6. Change life insurance and annuity beneficiaries to the trust where the plan calls for it.
7. Assign LLC interests and closely held stock by written assignment, and amend the operating agreement if needed.
8. Sign a general assignment of tangible personal property to the trustee.
9. Retitle vehicles with the DMV.
10. Sign a pour-over will under EPTL 3-3.7 as a backstop for anything missed.

Our page on assets that can and cannot go into a revocable trust explains the exceptions. If privacy is a concern, see are trusts public record in New York; the trust itself is not filed with any court, though a recorded deed to the trustee is public.

What still goes through probate even with a trust

The most common question we hear after a death is why the family is in Surrogate's Court when the decedent had a trust. The usual reasons:

• Unfunded assets: An account opened after the trust was signed, a refinanced house where the lender required the property be deeded back to the individual and it was never redeeded, an inheritance received and deposited into a new account. Each of these is in the decedent's sole name and must be probated.
• The pour-over will: EPTL 3-3.7 lets a will leave the residuary estate to a lifetime trust. That is a safety net, not a probate avoidance tool. The pour-over will must be admitted to probate (or the estate must qualify as a small estate) before anything pours over.
• Assets that arrive after death: A wrongful death or personal injury recovery, a tax refund, a final paycheck, a class action settlement, or an inheritance from a relative who died later. These belong to the estate and generally require letters, though EPTL 5-4.1 wrongful death claims are brought by the personal representative only.
• Failed beneficiary designations: A sole beneficiary who predeceased, a form the plan never received, or a designation of the estate. The asset falls into probate.
• Assets below the radar: Uncashed checks, security deposits, utility deposits, unclaimed funds held by the State Comptroller, and brokerage accounts the family did not know about. If the total is under $50,000, the small estate affidavit resolves them cheaply.
• Out-of-state real property: Land in another state not deeded to the trust requires an ancillary proceeding in that state even if New York probate is avoided.

What avoiding probate does not do

Keeping an asset out of Surrogate's Court does not remove it from the New York taxable estate. A revocable trust, a Totten trust account, a TOD security, and property passing by survivorship are all included for New York estate tax under Tax Law Article 26. New York's basic exclusion amount is $7,160,000 for deaths in 2025, and an estate more than 5% over that amount loses the exclusion entirely, the so-called cliff. Probate avoidance has no effect on that calculation; only a different kind of planning does. See advanced New York estate planning techniques.

Probate avoidance also does not defeat creditors. A revocable trust is reachable by the creator's creditors during life and at death (EPTL 7-3.1), Totten trust funds can be reached for estate debts (EPTL 7-5.6), and a surviving spouse's elective share under EPTL 5-1.1-A is computed against testamentary substitutes including joint accounts, Totten trusts, TOD securities, and revocable trusts. Nor does it protect assets from nursing home costs; a revocable trust is a countable resource for Medicaid. Asset protection and Medicaid planning use irrevocable trusts, which are a different subject covered on our trust attorney page.

Frequently asked questions

Does New York have a transfer-on-death deed?

Yes, since July 19, 2024, under Real Property Law 424. The deed must be signed before a notary and two witnesses and recorded before death. It does not apply to co-op shares.

Can I avoid probate in New York with just a will?

No. A will is the instruction manual for probate, not a way around it. A will controls only assets that pass through the estate. Assets with beneficiary designations, survivorship title, or trust ownership pass outside the will.

If my parent's only asset is a bank account under $50,000, do we need a lawyer or a court?

If the account has no in-trust-for beneficiary or joint owner, a family member can file the small estate affidavit under SCPA Article 13 for a $1 fee and collect the account with the court's certificate. If real property is involved, the small estate procedure is not available.

My mother added me to her bank account so I could pay her bills. Will I own it when she dies?

Under Banking Law 675, the law presumes you will, and your siblings would have to prove in Surrogate's Court that the account was for convenience only. If that is not what your mother intends, the account should be converted to a convenience account under Banking Law 678 or she should sign a power of attorney and name beneficiaries on an in-trust-for account.

Does a revocable trust in New York need to be registered or filed anywhere?

No. New York does not require trust registration. The trust is a private document. The deed transferring real property to the trustee is recorded and public, but the trust terms are not.

Talk to a New York estate attorney about your assets

Probate avoidance in New York is an asset-by-asset exercise. The right answer for a Queens co-op, a Westchester house, a Fidelity account and a city pension are four different statutes and four different forms. We review each asset, confirm title, and prepare the deed, assignment, or account documentation that keeps it out of Surrogate's Court. Albert Goodwin is a New York estate attorney practicing in Manhattan; read more at about Albert Goodwin.

The Law Offices of Albert Goodwin is located in Midtown Manhattan, New York, NY. Call 212-233-1233 or email email@nyestateslawyer.com to schedule a consultation.