What to Do When a Loved One Passes Away in New York

July 7, 2025
Rockland Estate Planning

Losing a loved one is never easy, and navigating the legal and financial responsibilities that follow can be overwhelming. If you’ve recently lost a family member in New York, it’s important to understand how estate planning documents, real estate, financial accounts, and other assets are handled under state law and carrying out your loved one’s wishes.

First Steps After a Loved One Passes Away
Before diving into legal matters, there are a few immediate tasks to prioritize:

  • Obtain the death certificate (typically issued by the funeral home)
  • Secure the decedent’s property to prevent loss or unauthorized access
  • Locate the will or estate planning documents, if any
  • Notify close family members and financial institutions

Once you’ve taken these steps, it’s time to determine the next steps.

1. Review Estate Planning Documents

Your first step should be to locate and review any estate planning documents the deceased may have left behind. These documents will guide much of what follows.

Power of Attorney Ends at Death

Many people assume that a Power of Attorney (POA) continues after death, but it does not. A POA is only valid during the life of the person who created it. Once they pass away, the named agent loses all authority to act on their behalf. At that point, the authority shifts to the executor of the will or the court-appointed administrator of the estate.

Validity of a Will in New York

If your loved one left a Last Will and Testament, it must meet certain legal requirements to be considered valid under New York law:

  • It must be in writing

  • The person (testator) must be at least 18 years old and of sound mind

  • It must be signed by the testator (or at their direction)

  • It must be witnessed by two people, who also sign the document

If the will is valid, it must be filed in the Surrogate’s Court for probate before any distributions can be made.

Dealing With a Trust

If the decedent created a revocable living trust, those assets titled in the name of the trust generally do not go through probate. Instead, the successor trustee named in the trust document will manage and distribute the trust assets in accordance with its terms.

Tip: Even if a trust exists, any assets not titled in the name of the trust may still need to go through probate.

2. Real Estate: How Ownership Affects Inheritance

Real estate ownership is a key factor in determining whether property must go through probate.

Types of Ownership in New York

  1. Sole Ownership: Property owned solely in the decedent’s name will typically go through probate

  2. Tenancy in Common: Each owner has a separate share. The decedent’s share will pass through their will or by intestacy and will be subject to probate.  

  3. Joint Tenancy with Right of Survivorship: Ownership passes automatically to the surviving joint owner and does not go through probate.  The deed must specifically state the rights of survivorship – if the deed is not explicit or is unclear, the default is for the property to be owned as Tenants in Common.

  4. Tenancy by the Entirety (Spouses Only): Similar to joint tenancy, this applies only to married couples in New York and also avoids probate. Unless specifically stated otherwise on the deed, property acquired by a married couple will be owned as Tenancy by the Entirety (“TBE).  However, property acquired before marriage cannot be TBE, and if a couple gets divorced, the TBE is automatically converted to Tenancy in Common.

  5. Special Case: Transfer on Death Deed: Starting July 2024, a property owner can record a Transfer on Death Deed.  This is a revocable deed that does not become effective until the owner passes away, at which time the property will belong to the beneficiary.  Note that Joint Tenants and married couples owning TBE property can sign a joint Transfer on Death Deed, which will help avoid probate when the last surviving owner passes away.

Deeds and Titles Matter

To determine how a property was owned, obtain a copy of the deed. In most counties, deeds can be looked up online at a website managed by the county.  In New York City, deeds are listed on the Automated City Register Information System “ACRIS”.  If property was owned as Joint Tenancy or Tenancy by the Entirety, or if a transfer on death deed was recorded, the property does not need to go through probate, and is not affected by the Will, but the death certificate, and maybe an affidavit, need to be filed with the county.

3. Financial Accounts (Bank, Brokerage, Retirement, etc.) and Life Insurance

Financial accounts often pass outside of probate depending on how they’re structured.

  1. Jointly Owned Accounts: Most joint accounts have rights of survivorship, whereby ownership passes automatically to the surviving accountholders and the account does not go through probate.  It is possible for an account to be held as a Tenancy in Common, but this is rare. Account titles should be carefully reviewed to avoid unintended consequences.

  2. Pay-on-Death and Transfer-on-Death Designations: Many financial institutions allow for POD or TOD designations.  These accounts transfer directly to the named beneficiary upon death and are not governed by the Will or subject to probate. 

  3. Life Insurance Policies: proceeds from a life insurance policy go directly to the named beneficiary.  If no beneficiary is named, or the named beneficiary has predeceased the policyholder, the proceeds become part of the probate estate.

Note: If a beneficiary designation contradicts the will, the beneficiary designation controls.

4. Other Types of Assets

Not all assets are covered in estate planning documents or automatically pass to beneficiaries.

Personal Property

  • Items such as jewelry, furniture, vehicles, and collectibles are considered personal property.

  • If not jointly owned or specifically gifted, these typically pass under the will or through intestacy.

Digital Assets

  • Email accounts, online photos, social media, etc. are governed by the terms of service.  Major providers, such as Apple, Facebook, and Google, have options for legacy planning.  Here is an article on how to set this up.

  • Digital currency, such as bitcoin, and other digital assets will be subject to probate unless a legacy option or pay-on-death has been set up.

  • New York has adopted laws allowing fiduciaries limited access to digital accounts, but it’s best to have explicit language in estate documents.

Business Interests

  • Ownership in a business (such as shares in an LLC or corporation) can be complex.

  • Review operating agreements or shareholder agreements to determine if a buy-sell or succession plan is in place.

5. Understanding the New York Probate Process

Probate is the legal process by which a decedent’s will is validated and their assets are distributed. If there is no will, the process is called estate administration.

When Is Probate Required?

Probate is generally required if the deceased owned assets solely in their name without a joint owner or beneficiary designation. These might include:

  • Individually owned real estate

  • Bank accounts with no joint owner or POD

  • Personal property or vehicles

The Probate Process in New York

While you’re alive, you can give assets away by writing a check, signing over the title of a vehicle, or executing a deed for real estate.  When you’re gone you can’t do that anymore.  Probate is a court-supervised process to transfer assets from someone who passed away to someone who’s alive.

  1. Filing the will in the Surrogate’s Court (in the county where the decedent resided)

  2. The Court will require that all interested persons are notified.  This step ensures that anyone has a chance to object to the Will or any other part of the probate process.

  3. The Court shall issue Letters Testamentary (if there’s a Will) or Letters of Administration (if there isn’t), authorizing someone to act on behalf of the estate.  If the Will nominates an Executor, that person will usually be appointed by the Court.

  4. Notify Creditors and Resolve Claims.  New York requires that all known creditors are informed of the probate, and that a notice is published in the paper for any unknown creditors to keep track of.  Additionally, a spouse may claim the Elective Share, which in New York is the greater of $50,000 or 1/3rd of the Augmented Estate, not just the probate estate.

  5. Inventorying the estate’s assets.  As a reminder, assets with a named beneficiary or jointly owned assets with rights of survivorship do not pass through probate.  The Executor/Administrator’s job is to ensure that any remaining assets go to the right parties.

  6. Paying valid debts and taxes.  Note that if there are more debts and taxes than there are assets in the estate, the Executor/Administrator may sometimes be obligated to claw back assets that transfer outside of the estate.

  7. Distributing remaining assets to beneficiaries. 

    • If there’s a Will that has not been contested, the remaining assets will be distributed according to the Will.  Anyone getting a specific item will get that first, but if the item no longer belongs to the estate, they’re out of luck.  Next come fixed dollar amounts, and if there’s not enough money to satisfy those bequests, everyone’s share will be decreased proportionally.  People entitled to a percentage get whatever is left.

    • If there’s no Will, or if the Will has been successfully contested, this is called “intestacy” and New York has specific rules for how the remaining assets should be distributed.

Small Estate Proceedings

If the total value of the estate is under $50,000 (excluding real estate), New York allows a simplified voluntary administration process, which is quicker and less expensive.

Get Legal Guidance Early

New York’s estate laws can be complicated, and probate is a time-consuming process, especially when dealing with real estate, creditor claims, or family disputes. A New York probate attorney can help you:

  • Determine which assets require probate

  • Navigate Surrogate’s Court procedures

  • Resolve conflicts among heirs

  • Expedite estate administration and final distribution

Grieving is hard enough. You shouldn’t have to face the legal aftermath alone. By understanding how property ownership and beneficiary designations affect asset distribution—and knowing when probate is necessary—you can make informed decisions and honor your loved one’s legacy.  Working with an experienced New York probate attorney can help you avoid costly mistakes, reduce family conflict, and streamline the process.

If you have questions about probate or estate matters in New York, our experienced attorneys are here to help. Contact us today for a consultation and let us guide you through the next steps with clarity and care.

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