Estate planning is more than just making sure you have basic documents in place – Wills, Healthcare Proxy, and Power of Attorney (POA). Many people endeavor to structure their assets so that they will transfer to their beneficiaries quickly and with as little administrative burden as possible – one way this done is by avoiding the probate process.
Probate is the process in which a Will is "proved " to the satisfaction of the Court to be the valid Last Will and Testament of the decedent - and - the person named in the Will as Executor (fiduciary) is officially appointed to carry out the wishes of the decedent. Note: if the decedent died without a Will, then the proceeding is called an Administration.
The probate process in New York is not so onerous that it should be avoided at all costs. However, probate can be time-consuming, costly, and public, so many people prefer to take steps to avoid it. Avoiding probate in New York State typically involves taking proactive steps to ensure your assets are transferred to beneficiaries outside the probate process. Here are several common strategies:
Establish a Revocable Trust: A revocable trust (or “living trust”) is one of the most common ways to avoid probate. It allows you to transfer your assets into the trust while you’re alive. Upon your death, the assets in the trust are distributed to your beneficiaries, avoiding the probate process.
How it works: You, as the grantor, create the trust and transfer ownership of your property to the trust. You can still manage and alter the trust during your lifetime. After death, the trustee administers the trust according to your instructions without court involvement.
Key benefits: Avoids probate, maintains privacy, can be modified during your lifetime, and provides continuity in case of incapacity. Especially beneficial for people owning real property in multiple states.
Joint Ownership with Right of Survivorship: If you own property jointly with someone (spouse, children, or another person), you can ensure that the surviving owner automatically inherits the property upon your death. This avoids probate because the asset passes directly to the surviving joint owner.
§Examples of joint ownership:
Joint Tenancy with Right of Survivorship (JTWROS): Both parties have equal rights to the property, and when one dies, the other automatically inherits full ownership.
Tenancy by the Entirety: This form of joint ownership is available only to married couples. It includes a right of survivorship, so the surviving spouse automatically inherits the property.
Designate Beneficiaries on Accounts: Certain types of assets like life insurance policies, retirement accounts (401(k), IRA, Roth IRA), and payable-on-death (POD) or transfer-on-death (TOD) bank accounts (see below), allow you to name beneficiaries who will inherit these assets upon your death without the need for probate.
Payable-on-Death (POD) and Transfer-on-Death (TOD) Accounts: Certain financial accounts can be structured to pass directly to a designated beneficiary upon your death. These are often used for bank accounts, stocks, or bonds.
Beneficiary Deeds (Transfer-on-Death Deeds): New York State recently authorized TOD deeds for real property. In addition to avoiding probate, a key advantage of TOD deeds is they allow transferors to maintain complete control over the property during their lifetime. They may freely choose to modify or sell their property at any time without the consultation of the deed’s beneficiaries.
Things to Keep in Mind
Trust Administration: While a revocable trust avoids probate, there are additional costs and responsibilities involved in the trust's creation and administration. It is important that assets (including real property, financial account, and personal property) are correctly transferred into the trust – otherwise they will not avoid probate.
Wills, POA, Healthcare Proxies: Even if you are using one, or more, of these strategies you should still have a Will, Power of Attorney, and Healthcare Proxy.
Estate Taxes: New York has its own estate tax rules. If your estate exceeds certain thresholds (currently $7.16 million in 2025), it may be subject to estate taxes regardless of whether it goes through probate. The IRS also imposes estate taxes on large estates.
Ultimately, whether (and to what extent) one structures their assets to avoid probate should be weighed against the costs and benefits of doing so.
Rialto Wealth Management is a fee-only, fiduciary, advisory firm based in Syracuse, NY. From financial planning to investment management, we help families across New York and beyond. We can be reached by phone at (315) 992-9129 or via email through our website’s secure and confidential contact page.
Avoiding Probate – You’ve Got Options
March 26, 2025 by Mike Antonacci
Estate planning is more than just making sure you have basic documents in place – Wills, Healthcare Proxy, and Power of Attorney (POA). Many people endeavor to structure their assets so that they will transfer to their beneficiaries quickly and with as little administrative burden as possible – one way this done is by avoiding the probate process.
Probate is the process in which a Will is "proved " to the satisfaction of the Court to be the valid Last Will and Testament of the decedent - and - the person named in the Will as Executor (fiduciary) is officially appointed to carry out the wishes of the decedent. Note: if the decedent died without a Will, then the proceeding is called an Administration.
The probate process in New York is not so onerous that it should be avoided at all costs. However, probate can be time-consuming, costly, and public, so many people prefer to take steps to avoid it. Avoiding probate in New York State typically involves taking proactive steps to ensure your assets are transferred to beneficiaries outside the probate process. Here are several common strategies:
Establish a Revocable Trust: A revocable trust (or “living trust”) is one of the most common ways to avoid probate. It allows you to transfer your assets into the trust while you’re alive. Upon your death, the assets in the trust are distributed to your beneficiaries, avoiding the probate process.
Joint Ownership with Right of Survivorship: If you own property jointly with someone (spouse, children, or another person), you can ensure that the surviving owner automatically inherits the property upon your death. This avoids probate because the asset passes directly to the surviving joint owner.
§ Examples of joint ownership:
Designate Beneficiaries on Accounts: Certain types of assets like life insurance policies, retirement accounts (401(k), IRA, Roth IRA), and payable-on-death (POD) or transfer-on-death (TOD) bank accounts (see below), allow you to name beneficiaries who will inherit these assets upon your death without the need for probate.
Payable-on-Death (POD) and Transfer-on-Death (TOD) Accounts: Certain financial accounts can be structured to pass directly to a designated beneficiary upon your death. These are often used for bank accounts, stocks, or bonds.
Beneficiary Deeds (Transfer-on-Death Deeds): New York State recently authorized TOD deeds for real property. In addition to avoiding probate, a key advantage of TOD deeds is they allow transferors to maintain complete control over the property during their lifetime. They may freely choose to modify or sell their property at any time without the consultation of the deed’s beneficiaries.
Things to Keep in Mind
Ultimately, whether (and to what extent) one structures their assets to avoid probate should be weighed against the costs and benefits of doing so.
Rialto Wealth Management is a fee-only, fiduciary, advisory firm based in Syracuse, NY. From financial planning to investment management, we help families across New York and beyond. We can be reached by phone at (315) 992-9129 or via email through our website’s secure and confidential contact page.