This is a very common question that is often asked. The short answer is “no”, but sometimes it may be beneficial to have assets pass after death via a Will and have the Will go through probate.
What is Probate?
Probate is the court-supervised legal process of settling a deceased person’s estate, which involves: filing the deceased individual’s original Last Will and Testament with the local Surrogate’s Court to have the Will validated by a judge, having an Executor officially appointed by the Court, paying the debts and taxes of the deceased individual, and distributing the remaining assets of the estate to the beneficiaries named in the Will.
Does Every Will Have to go Through Probate?
In New York, not every Will needs to go through the formal probate process. Whether a Will must be probated depends a large part on how the assets are owned at the time of an individual’s death.
Non-Probate Assets
Many types of assets bypass the probate process entirely because they transfer automatically by law. These include:
* Jointly Owned Property: Real estate, bank accounts or investment accounts held as “Joint Tenants with Right of Survivorship” or “Tenancy by the Entirety” (for married couples) pass directly to the surviving owner.
* Beneficiary Designations: Assets with named beneficiaries—such as life insurance policies, retirement accounts (401ks, IRAs), and bank accounts with “Payable on Death” (POD) or “Transfer on Death” (TOD) tags—pass directly to those individuals.
* Living Trusts: Any assets placed into a valid living trust during the person’s lifetime are distributed by the trustee of the trust without the need for court involvement.
When Might Probate be Beneficial?
While many estate plans are designed to avoid probate, there are circumstances where allowing assets to pass through a Will can be advantageous. These include:
* Providing for a Minor or Disabled Beneficiary: A Will can allow you to nominate a guardian for both the person and property of a minor child. It can also include provisions for the creation of a supplemental (special needs) trust for a disabled beneficiary, along with the appointment of a trustee to manage those assets responsibly.
* Contingency Planning: A Will can provide a structured framework for addressing “what if” scenarios. It allows you to clearly outline how assets should be distributed if a primary beneficiary predeceases you or is unable to inherit, ensuring your wishes are carried out under a variety of circumstances.
* Tax Planning: In some cases, probate can facilitate post-death tax planning opportunities. Certain tax elections and tax savings strategies may be implemented during the probate process to help minimize estate tax consequences, depending on the nature and size of the estate.
Conclusion
Not every Will must go through the probate process, but sometimes it can be beneficial. Everyone’s financial circumstances, family dynamics, and personal goals are unique. That’s why it’s important to consult with an experienced elder law or estate planning attorney who can guide you in thoughtfully crafting an estate plan tailored to your specific needs and objectives. At Makofsky Valente Law Group, assisting clients with thoughtful estate planning is what we do every day. If you would like assistance with your estate planning, wills, trusts, or disability planning needs, we would be happy to help. Contact our office by phone or email to schedule an appointment!
