If you have just lost a loved one in Manhattan, one of the first practical questions is deceptively simple: what actually has to go through court? In New York, “probate” is the process in Surrogate’s Court (for New York County, that means the courthouse downtown on Chambers Street) where a will is proven valid and an executor is given authority. But not everything a person owned has to travel that road. Understanding the difference can save your family months of waiting.
What Probate Actually Is
When someone dies leaving a valid will under EPTL §3-2.1, the named executor petitions the Surrogate’s Court to admit that will and issue “letters testamentary.” If there is no will, the estate passes by intestacy under EPTL Article 4, and a relative asks the court for “letters of administration.” Either way, the court oversees the transfer of probate assets.
Assets That Typically Go Through Probate
The common thread is simple: probate assets are those held in the decedent’s name alone, with no built-in transfer mechanism. In a typical Manhattan estate, that often includes:
- A co-op apartment or condo titled solely in the decedent’s name (extremely common here, and co-op boards add their own approval layer).
- Individual bank or brokerage accounts with no beneficiary listed.
- Personal property: jewelry, art, furniture, vehicles.
- A business interest held individually.
Assets That Skip Probate Entirely
Many assets pass automatically, outside the court process, because the transfer is built into how they are titled or designated:
- Jointly owned property with right of survivorship. A condo or bank account owned “jointly with right of survivorship” passes directly to the surviving owner.
- Beneficiary designations. Life insurance, IRAs, and 401(k)s pass to the named beneficiary, not through the will.
- “Payable-on-death” (POD) and “transfer-on-death” accounts. These pass to the named person on presentation of a death certificate.
- Assets in a trust. Property titled in a revocable living trust (EPTL Article 7) avoids probate because the trust, not the individual, owns it. Importantly, a revocable trust avoids probate but offers no estate-tax savings and no Medicaid protection. An irrevocable trust is the tool used for estate-tax planning or Medicaid eligibility, which carries a five-year look-back period.
Why the Distinction Matters in Manhattan
New York County’s Surrogate’s Court handles a heavy volume of estates, and contested or paperwork-heavy matters can take many months. Every asset you can move outside probate is one less thing waiting on a docket. It also matters for the New York estate tax: for 2026, the exclusion is $7,350,000, but New York imposes a “cliff” so an estate exceeding $7,717,500 can lose the exclusion entirely and be taxed on the full value. Note that whether an asset avoids probate has nothing to do with whether it is taxable, both probate and non-probate assets count toward the taxable estate.
A Quick Self-Check
Pull each account statement and deed and ask two questions: Whose name is on it? and Is there a beneficiary or joint owner? Anything in one name only, with no beneficiary, is likely a probate asset.
Consult a New York Attorney
Every estate is different, and Manhattan’s mix of co-ops, condos, and high-value accounts makes titling questions especially tricky. Before filing anything with the Surrogate’s Court, speak with a qualified New York estate attorney who can review your specific assets and advise on the correct procedure.
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