How to transfer assets outside probate under New York law

Disclaimer: This is educational information, not legal advice. Consult a licensed New York attorney to apply these principles to your situation.

Detailed answer

Short answer: Yes—many assets can pass outside New York probate if you use the right combination of beneficiary designations, joint ownership with right of survivorship, payable/transfer-on-death registrations, and trusts. But not everything can be handled by a will alone, and each method has limits and tax, creditor, and family-law consequences you should evaluate with counsel.

Key ways to keep assets out of probate in New York

• Beneficiary designations (retirement accounts, life insurance). Employer retirement plans, IRAs, and life insurance pay out to the named beneficiary and generally avoid probate. Make sure beneficiary forms are up to date and coordinated with estate plans. Federal law (ERISA) governs many employer plans, and the plan document controls distribution rules.
• Payable-on-death (POD) and transfer-on-death (TOD) registrations (bank and brokerage accounts). You can name a POD beneficiary for bank accounts or a TOD beneficiary for brokerage accounts so the asset transfers directly at death without probate. Financial institutions have their own forms and rules—confirm they accept and will honor the designation.
• Joint ownership with right of survivorship. If you and your spouse (or someone else) hold an asset as joint tenants with right of survivorship, the survivor becomes sole owner on death. This avoids probate for that asset, but it also gives the co‑owner ownership rights while both are alive—which may not match every couple’s goals.
• Revocable living trust. Funding assets into a living trust lets the trustee (often you while alive) control assets; when you die, successor trustees distribute assets under the trust’s terms without probate. Trusts also help with privacy and can provide continuity if you become incapacitated.
• Transfers to minors and custodial accounts. Uniform Transfers to Minors Act (UTMA) or custodial accounts allow transfers without probate. These create custodial ownership for the child until the statutory age is reached.

What a will does and its limits

A will states how you want probate-only property (assets titled solely in your name without beneficiary designations or joint owners) distributed and names an executor to administer the estate through Surrogate’s Court. In New York, the Surrogate’s Court oversees probate and administration (see the Surrogate’s Court Procedure Act: https://www.nysenate.gov/legislation/laws/SCPA). But a will alone cannot avoid probate for assets that are solely titled in your name when you die.

Real property (homes and land)

Real property titled solely in your name typically must pass through probate unless you hold it with rights of survivorship (joint tenancy or tenancy by the entirety) or place it in a trust. New York does not have a statewide, commonly used “beneficiary deed” (also called a “transfer-on-death deed”) in wide use like some states. Because real estate rules are technical and local recording rules vary, talk to a New York attorney before changing title on a deed.

Common family scenario (hypothetical)

Example: Alex and Casey are married with two children. They want the survivor to keep the house and split other assets between the children without probate. Practical approach in New York might include:

1. Title the marital bank account as joint tenants with right of survivorship or use POD designations so the survivor gets immediate access.
2. Keep retirement accounts and life insurance up to date with primary and contingent beneficiaries.
3. Fund a revocable living trust with the family home and other major assets. The trust names the survivor as initial trustee and provides for the children after the survivor dies, avoiding probate for trust assets.
4. Use custodial accounts or small payable-on-death accounts for gifts to the children when appropriate.

Why coordination matters

Conflicts can arise if beneficiary designations, account registrations, joint titles, and a will or trust disagree. Often, beneficiary forms trump wills for the specific asset. If the paperwork is inconsistent, survivors may face delays, disputes, or litigation in Surrogate’s Court. To reduce the risk, review asset titles and beneficiary designations whenever your family or financial situation changes (marriage, divorce, births, deaths, new accounts).

Statutes and procedures to review

• New York Estates, Powers and Trusts Law (general estate and trust rules): https://www.nysenate.gov/legislation/laws/EPTL
• Surrogate’s Court Procedure Act (probate and administration procedures): https://www.nysenate.gov/legislation/laws/SCPA

Helpful hints

• Inventory assets and note how each is titled. Identify which assets already bypass probate (retirement plans, life insurance, POD/TOD accounts).
• Update beneficiary designations whenever circumstances change: marriage, divorce, birth, or death of a beneficiary or account owner.
• Consider a revocable living trust if you own real estate or want to avoid probate for multiple assets. A trust avoids probate only for assets properly retitled into it.
• Be cautious with joint ownership: joint title gives co‑owners control during life and may unintentionally disinherit someone or create tax and creditor exposure.
• Check with the financial institution to confirm whether it supports POD/TOD or how to fill out the correct beneficiary forms.
• For minor children, use UTMA/UGMA accounts or name a guardian in your will; avoid letting large sums pass directly to minors without a plan.
• Coordinate estate planning with your tax and elder‑law advisors when you have significant assets, retirement accounts, or potential Medicaid concerns.
• Keep records of all beneficiary forms, deeds, trust documents, and account registrations in a safe place and tell your named agent/executor/trustee where to find them.
• When in doubt, consult a New York licensed attorney. Probate rules and local court practice can vary by county and fact pattern.

If you would like, I can outline a simple checklist based on your assets (home, bank accounts, retirement accounts, brokerage, life insurance) to show what to check and which documents to prepare.