Thinking Your Spouse Will Avoid Probate? Think Again

Many married couples assume that when one spouse passes away, the other will automatically inherit everything without the need for probate. However, this isn't always the case. We often encounter clients surprised by the complexities of estate transfer, even within a marriage. Let's clear up some common misconceptions and explore how you can truly protect your family's assets.

What Assets Go Through Probate?

In New York, assets solely owned by the deceased without joint ownership, a listed beneficiary, or held in a trust will likely go through probate. This can include:

- Bank accounts in your name only

- Real estate titled solely in your name

- Personal property (jewelry, artwork, vehicles)

- Investments without beneficiary designations

- Safety deposit boxes at a bank

The Power of Joint Ownership and Beneficiary Designations

Joint ownership with rights of survivorship and proper beneficiary designations can help assets bypass probate:

- Jointly owned property automatically passes to the surviving owner

- Retirement accounts, life insurance policies, and bank accounts with named beneficiaries transfer directly to those individuals

The Truth About Wills

A will is designed to guide the probate court on how to distribute your assets.  Contrary to popular belief, having a will does NOT  avoid probate. A will MUST go through the probate court process in order to be validated and for the distribution instructions to be carried out by the executor.  In fact, in New York, all estates valued over $50,000 must go through probate when there's a will.

New York-Specific Rules

New York has specific rules that can affect probate:

- Surviving spouses automatically receive $50,000 plus half of the estate (splitting the other half with the deceased spouse’s children, if there are any).  Even in the case where a spouse tries to disinherit a spouse via their will, the surviving spouse still has a right to claim $50,000 or one-third of the deceased spouse’s net estate, whichever is greater- sometimes called the “elective share”. This is to prevent spouses from being left without support after the death of their partner.

- Small estates (under $50,000) may qualify for a simplified "small estate proceeding".

Protecting Your Family and Estate

To truly safeguard your assets and spare your loved ones from a lengthy probate process:

1. Consider creating a living trust

2. Review and update beneficiary designations regularly

3. Understand which assets are held jointly and which are not

4. Consult with an experienced estate planning attorney

At Sammartino & Sultan, we're committed to helping you navigate the complexities of estate planning. Taking simple steps today can save your family significant time, money, and stress in the future.

Don't leave your family's financial security to chance. Contact Sammartino & Sultan today to ensure your estate plan truly protects your loved ones and avoids unnecessary probate complications.

About the Author

Leslie has been practicing law since 2009 and is the host of the estate planning podcast 'Legacy Purse'. She has a long history of representing family members struggling to inherit property and/or wealth from deceased family members through the Probate Courts. Knowing how time-consuming and expensive the probate process is, Leslie takes great pride in helping her clients learn how to plan and protect their families during their lives so they can avoid the probate court process and save their loved ones that additional grief (and expense).