Who decides if probate is needed?

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Who Decides If Probate Is Needed in New York?

Probate is a legal process that involves the validation and distribution of a deceased person’s assets and estate. However, not all estates require probate, and determining whether it’s needed can be a crucial decision in the estate administration process. In this guide, we’ll explore the factors that influence the need for probate in New York and who has the authority to make this decision.

Understanding Probate

Probate is the legal process that ensures a deceased person’s will is valid and their assets are distributed according to their wishes. It involves several steps, including:

  • Submitting the will to the court
  • Appointing an executor or administrator
  • Identifying and valuing assets
  • Settling debts and taxes
  • Distributing assets to beneficiaries

However, not all estates go through probate. Whether probate is necessary depends on several factors.

Factors That Determine the Need for Probate

1. Ownership Structure: The way assets are owned plays a significant role. Assets held in joint tenancy, tenancy by the entirety, or as community property with the right of survivorship typically pass directly to the surviving owner and bypass probate. Similarly, assets with designated beneficiaries, such as life insurance policies and retirement accounts, also avoid probate.

2. Estate Value: In New York, estates valued at or below $50,000 are considered small estates and may be eligible for simplified probate procedures or even exemption from probate altogether.

3. Validity of the Will: If the deceased left a valid will, it typically dictates how assets are distributed. If there are no disputes or challenges to the will, the probate process may proceed more smoothly.

4. Out-of-State Property: If the deceased owned property in other states, additional probate proceedings may be necessary in those jurisdictions.

Authority to Determine Probate Necessity

1. Executor or Administrator: If the deceased named an executor in their will, that person is responsible for initiating the probate process. The executor must file the will with the appropriate New York Surrogate’s Court and follow the court’s instructions regarding probate. If there is no will, or if the named executor cannot fulfill their duties, the court may appoint an administrator to handle the estate.

2. Beneficiaries and Heirs: Beneficiaries and heirs have the right to contest the need for probate if they believe it’s unnecessary. They can provide evidence that assets can be transferred without probate, such as through joint ownership or beneficiary designations. However, the court will ultimately decide based on the presented evidence.

3. Attorneys and Legal Experts: Estate planning attorneys and legal experts can provide guidance on whether probate is required. They can review the estate’s assets and ownership structure to determine the most efficient way to transfer them to beneficiaries.


In New York, the need for probate is determined by various factors, including the ownership structure of assets, estate value, and the validity of the will. The decision to initiate probate typically rests with the named executor or court-appointed administrator. Beneficiaries, heirs, and legal experts also play a role in contesting the need for probate when applicable. It’s essential to seek professional guidance, such as that offered by Morgan Legal Group, to navigate the complex probate process and make informed decisions regarding estate administration.

DISCLAIMER: The information provided in this blog is for informational purposes only and should not be considered legal advice. The content of this blog may not reflect the most current legal developments. No attorney-client relationship is formed by reading this blog or contacting Morgan Legal Group PLLP.

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