Probate in New York is often simple if the estate plan is organized, but even small mistakes can lead to delays, extra costs, and family disagreements. Most issues we see start with missing paperwork, unclear beneficiary choices, mishandled property, or misunderstandings about an executor’s role. Fixing these problems after probate begins can mean more paperwork, court visits, or even lawsuits. We encourage families to plan ahead and learn about common probate pitfalls before problems arise.
At Bernard Law P.C., we help people and families in Suffolk County avoid common probate problems. We also guide New York residents who own property in Florida, since those assets can cause extra challenges if not handled correctly.
Trap One: Assuming A Will Avoids Probate
One of the most common misconceptions we hear is that having a will means the family will avoid probate. In reality, a will is usually the document submitted to Surrogate’s Court to begin the probate process.
Under New York Surrogate’s Court Procedure Act § 1402, a petition may be filed to admit a will to probate and obtain authority for the nominated executor to act. The court must be satisfied that the document is the valid last will and testament of the decedent, and interested parties generally must receive notice and an opportunity to raise objections.
This distinction matters because some people create a will but never address how their assets are titled. A home, investment account, or bank account held solely in the decedent’s name may still require probate even if the will clearly identifies who should inherit it.
By contrast, assets held in a properly funded trust, certain jointly owned property, and accounts with valid beneficiary designations may pass outside probate. The planning question is therefore not simply whether you have a will, but whether your ownership structure supports your intended result.
Trap Two: Failing To Locate And Preserve The Original Will
Another major problem arises when the original will cannot be located. Surrogate’s Court generally expects the original document, not simply a photocopy. If the original is missing, the court may require additional proof before admitting a copy to probate. That can increase both the time and cost of estate administration.
Families should also take care when handling the original will. New York courts specifically caution against removing staples from an executed will because alterations to the document’s physical condition can raise questions about whether pages were removed or substituted.
We encourage clients to keep the original will in a secure location and make sure the appropriate person knows where it can be found. A carefully drafted estate plan provides little benefit if no one can locate the controlling document when it is needed.
Trap Three: Distributing Assets Before The Executor Has Authority
Family members often want to begin distributing property immediately after a death. Jewelry, furniture, vehicles, and even financial assets may be handed out before anyone has formally been appointed by the court.
That can create serious problems.
Until letters testamentary are issued, the nominated executor may not have full authority to administer probate assets. Once appointed, the executor has fiduciary responsibilities to beneficiaries and creditors. New York Estates, Powers and Trusts Law § 11-1.1 gives fiduciaries significant powers to manage estate property, including authority over certain sales and financial transactions, but those powers must be exercised for legitimate estate purposes.
Premature distributions can become especially problematic when debts, taxes, funeral expenses, or competing beneficiary claims later surface. An executor who distributes too much too soon may have difficulty recovering assets and may potentially face personal exposure.
A better approach is to identify assets, liabilities, and beneficiary rights before making final distributions.
Trap Four: Forgetting That Beneficiary Designations Can Override The Will
A will does not control every asset. Life insurance, retirement accounts, payable-on-death accounts, transfer-on-death arrangements, and certain jointly owned assets often pass according to beneficiary designations or ownership terms rather than through the will.
This creates one of the most common estate planning mismatches. A person may update a will after divorce, remarriage, or the birth of a child but leave an old beneficiary designation unchanged. The result may be that an asset passes to someone the decedent no longer intended to benefit.
We encourage clients to review wills, trusts, account titles, and beneficiary designations together. Estate planning documents should operate as one coordinated plan, not as unrelated pieces of paperwork.
If no valid will controls probate property, New York Estates, Powers and Trusts Law § 4-1.1 determines who inherits under the state’s intestacy rules. Those statutory distributions may be very different from what the decedent would have chosen.
Trap Five: Mishandling Real Estate
Real estate frequently creates some of the most difficult probate issues. An executor may need to preserve a home, pay taxes and insurance, decide whether repairs are appropriate, address occupants, or determine whether the property should be sold. New York EPTL § 11-1.1 generally grants fiduciaries broad authority over estate property, including the ability in appropriate circumstances to sell real property when doing so benefits the estate.
Problems arise when beneficiaries assume they can control the property before administration is complete. One child may want to keep the home, another may want it sold, and another may already be living there. These disagreements can quickly delay estate administration.
The executor’s responsibility is not to satisfy the loudest beneficiary. The executor must administer the estate consistently with the will, applicable law, and fiduciary duties owed to all interested parties.
Trap Six: Ignoring Florida Property In A New York Estate Plan
For New York snowbirds, Florida real estate deserves special attention. If a New York domiciliary dies owning Florida real property individually, the New York probate proceeding may not be sufficient by itself to transfer that Florida property. Florida Statutes § 734.102 provides for ancillary administration when a nonresident dies leaving qualifying property in Florida.
That can mean a second court proceeding, additional professional fees, and additional administrative work for the family.
This is one reason we regularly review how snowbird property is titled. Depending on the client’s circumstances, trust planning or other ownership arrangements may help reduce the need for separate probate proceedings.
New York and Florida planning should be coordinated while the client is alive, not after the family discovers that two probate systems are involved.
Good Probate Planning Begins Before Probate
Most probate traps are easier to prevent than to correct. A clear will, coordinated beneficiary designations, properly titled assets, carefully selected fiduciaries, and thoughtful planning for property in multiple states can substantially reduce problems later. Estate planning should also be reviewed periodically because family relationships, assets, tax laws, and residency can all change.
The objective is not simply to prepare documents. It is to create an estate plan that can actually be administered efficiently when your family eventually needs it.
New York Probate Frequently Asked Questions
Does Every Estate Have To Go Through Probate In New York?
No. Probate generally applies to assets controlled by a will and titled solely in the decedent’s name. Assets held in certain trusts, jointly owned property, and accounts with valid beneficiary designations may pass outside probate. Whether probate is necessary depends on the nature and ownership of the assets.
What Happens If The Original Will Cannot Be Found?
A missing original will can create complications. New York law may permit probate of a lost or destroyed will under certain circumstances, but additional evidence and court proceedings may be required. That is why we recommend securely storing the original and making sure trusted individuals know its location.
Can An Executor Sell A House During Probate?
Potentially, yes. New York EPTL § 11-1.1 grants fiduciaries significant authority over estate assets, including certain powers to sell real property. The executor must still act in accordance with the will, applicable law, and fiduciary responsibilities owed to beneficiaries.
What Happens If A Beneficiary Disagrees With The Executor?
Disagreement alone does not necessarily prevent the executor from acting. Executors have fiduciary duties and statutory powers to administer estate property. However, beneficiaries may seek court intervention if they believe the executor has breached those duties or improperly handled estate assets.
Can We Divide Personal Property Before Probate Is Finished?
We generally recommend caution. Premature distributions can create problems if the estate later needs assets to pay taxes, debts, expenses, or other obligations. The executor should understand the estate’s financial position before making final distributions.
Does A New York Will Control Florida Real Estate?
Not necessarily by itself. A New York resident who dies owning Florida real property may trigger ancillary administration under Florida Statutes § 734.102. Proper planning before death can sometimes reduce this additional burden.
What Happens If Someone Dies Without A Will In New York?
New York EPTL § 4-1.1 controls intestate distribution. The statute determines which relatives inherit and in what proportions. Those rules may not reflect what the deceased person would have chosen, which is one reason a properly drafted estate plan is important.
Talk With Bernard Law P.C. About Your Estate Needs Today
Probate problems often begin long before anyone files papers with Surrogate’s Court. Poorly coordinated documents, outdated beneficiary designations, real estate ownership issues, and premature distributions can all make estate administration more difficult than necessary. At Bernard Law P.C., we help individuals and families identify these risks before they become problems and assist executors and beneficiaries when probate is already underway.
If you have questions about probate, wills, trusts, estate administration, or planning for property located in both New York and Florida, Bernard Law P.C. can help. Our law office is located in Shoreham, New York, and we serve clients throughout Suffolk County. Contact our Suffolk County estate planning attorney at Bernard Law P.C. by calling (631) 378-2500 to schedule a free consultation.
