April 8, 2025
When a loved one passes away owning real property in upstate New York but lived (domiciled) in another state, the executor or heirs often discover they need to open what’s called “ancillary probate” in New York. This can come as a surprise to families who already went through a primary probate elsewhere, such as in Florida, Pennsylvania, or any other state. Nevertheless, under New York law, real property is governed by the Surrogate’s Court in the county where it’s located. If the decedent owned a home or land in, for instance, Albany or Saratoga County, the out-of-state executor may need to ask the local court for permission to administer or transfer that property.
Below is a closer look at what ancillary probate involves, why it’s required, and how to get it done efficiently if you are dealing with a non-domiciliary’s New York real estate.
Why an Ancillary Proceeding Is Needed
A will that’s validly probated in another state typically gives the executor the authority to handle the decedent’s property in that home state. However, once it’s time to sell or pass along real estate in New York, the executor’s powers often don’t automatically extend across state lines. Each state has its own real property rules, and New York Surrogate’s Court wants official evidence that the will is valid and that the named executor has the right to act on behalf of the estate for property within this state. An ancillary probate proceeding accomplishes exactly that. It confirms New York’s recognition of the out-of-state will and grants local authority to transfer or dispose of the real property.
Where To File and What Documents You’ll Need
If the decedent’s property is in New York the executor will file in the relevant county’s Surrogate’s Court. The typical process includes obtaining exemplified copies of the will, the original probate order (or letters testamentary), and other necessary records from the state where the decedent’s estate is being administered. An “exemplified copy” is a special certified set of documents the original probate court prepares, showing that the will was admitted validly.
With those in hand, the executor or attorney files a petition for ancillary probate in the New York county where the property is located. The Surrogate’s Court then reviews the paperwork, confirms the will’s validity under that other state’s law, and ensures any local beneficiaries or creditors receive notice. If all is in order, the court issues what’s known as ancillary letters testamentary (or ancillary letters of administration with will annexed), formally recognizing the executor in New York.
How the Transfer Happens
Once the court grants ancillary letters, the executor (now empowered in New York) can handle the real estate much like they would in the home-state probate. They can sign a deed to the heirs, place it in a trust, or sell the property if the will instructs them to do so. If there are mortgages, liens, or unpaid property taxes, those need to be resolved or accounted for, just as in any real estate transaction. Title companies typically want to see the ancillary letters to be certain the executor has the authority to sign over the property.
Potential Pitfalls and Ways To Smooth Out the Process
It’s important to note that if someone tries to skip this step, county clerks and title professionals may refuse to record a deed from an out-of-state executor. New York requires that local authority, which is exactly what ancillary probate provides. Anyone administering an estate with real property in more than one state should plan ahead for the possibility of multiple probate or ancillary proceedings, although sometimes a more streamlined method—like a revocable living trust funded with the property during the owner’s lifetime—can avoid this extra step entirely.
Nevertheless, if you’re already facing a situation where your loved one owned a family home or vacant land in New York, it’s reassuring to know that ancillary probate is typically less cumbersome than a full estate administration. It’s often a matter of filing properly authenticated papers from the home state’s probate court, along with a short petition that spells out what the property is and who inherits it.
Where To Turn for Legal Help
Because out-of-state personal representatives may not be familiar with New York Surrogate’s Court rules, working with a local New York attorney who handles ancillary probate can help expedite the process. That attorney can guide you on collecting exemplified copies, filing the necessary pleadings, and transferring title or selling the property if needed. They’ll also check whether there’s a mortgage or property tax arrears that might complicate the final conveyance.
For many families, the biggest surprise is simply that any extra legal proceeding is necessary. Once they’ve filed and received the ancillary letters, though, the path to finishing the New York property transfer is usually straightforward.
February 27, 2025
Having a living trust is a popular way to avoid probate and keep your estate plan more private. But one question often arises: if you’ve created a living trust, do you even need a will anymore? The short answer is: yes, you typically do. Here’s why.
A revocable living trust is sometimes just called a “living trust.” You set it up while you’re alive, you can serve as the trustee (managing your own assets), and you name a successor trustee to step in when you pass away or if you become incapacitated. Any property actually transferred (or “funded”) into the trust sidesteps the New York probate process once you die.
If you’re diligent, you might deed your house to the trust, retitle your brokerage accounts to the trust, and generally move as many assets as possible into it. That way, when the time comes, the successor trustee can distribute or manage those trust assets without needing court approval. But here’s the catch: most people never retitle every single asset—or new assets come along later and never make it into the trust.
Even if you tried to “fund” your trust thoroughly, life happens: you might buy a new car and never title it in the trust’s name, or you open a bank account and forget to switch it over. That means there’s still some property in your name alone when you die. If you don’t have a will, the only fallback is intestacy law, which might distribute that leftover property in a way that clashes with your trust plan. And so, a will can include what’s called a “pour-over” clause, directing that any assets left out of the trust at your death are automatically “poured over” into it. This ensures your trust instructions ultimately govern everything, even if you missed a step in funding the trust.
Another issue is that a living trust does not handle naming a guardian for your minor child. If you have children under 18, you’d typically want a will that nominates someone to serve as their guardian, so the Surrogate’s Court knows your preference if both parents pass away or otherwise can’t care for them. A trust alone won’t achieve that.
Think of your living trust as the main vessel for distributing major assets outside probate. Meanwhile, your will is a safety net, covering anything not in the trust and naming guardians for children. The will can be simple: naming an executor, referencing your trust, and handling guardianship if needed. Everything else can live in your trust instrument. So if someone suggests that a trust alone means you don’t need a will, be aware that in practical estate planning, both documents tend to work hand in hand.
February 18, 2025
When a will goes missing, New York law offers a way to prove its existence and carry out the testator’s wishes. This usually involves an action in Surrogate’s Court, where the proponent must demonstrate that the original will was properly signed and witnessed, that it was never intentionally revoked, and that a reliable copy or record of its full contents exists. These requirements stem from the principle that a will cannot be simply presumed valid if its physical form is gone.
A common complication is that New York presumes a will found missing was destroyed by the testator if the testator last had possession of it. Overcoming that presumption means explaining why the original cannot be located, perhaps by showing it was stored somewhere other than the testator’s home or that someone else had custody. The court wants good reason to believe the missing will was neither discarded nor torn up in a change of heart.
Proving the contents is another hurdle. Typically, a photocopy or conformed copy is presented, along with testimony from those who either witnessed the execution or otherwise know the document’s provisions. If the court is satisfied that the will was duly executed, not revoked, and accurately recalled or copied, it can be admitted to probate. The lost will then controls the distribution of the decedent’s estate just as though the original had been found.
Because the standards are strict, anyone creating a will should take care to store it in a safe, known location. Sharing that location or leaving clear instructions can spare loved ones the burden of having to prove a document’s contents after it disappears. Still, even if a will is lost, the law provides a path forward for those able to show it was valid and intended to remain the testator’s final word.
When it comes to estate planning, many people wonder whether they can disinherit a spouse in their will. In New York, disinheriting a spouse is not as simple as leaving them out of your will. Due to legal protections in place for surviving spouses, even if you attempt to disinherit your spouse, they may still be entitled to a portion of your estate.
Under New York law, a surviving spouse has a legal right to claim a portion of their deceased spouse’s estate, regardless of what is written in the will. This is known as the “right of election.”
The purpose of this law is to prevent one spouse from leaving the other with nothing upon their death, especially in cases where there may have been estrangement or where one spouse may have attempted to favor other heirs at the expense of their partner.
The right of election entitles the surviving spouse to the greater of:
$50,000 or
One-third of the deceased spouse’s estate (this includes probate and non-probate assets, such as jointly owned property, bank accounts, and life insurance policies).
This means that even if the will specifically disinherits the spouse, the surviving spouse can still claim their elective share of the estate. This amount includes both assets that pass through the will (probate assets) and certain non-probate assets that the deceased may have tried to transfer outside of the estate.
The elective share includes more than just the assets that pass through probate. Under New York’s Estates, Powers, and Trusts Law (EPTL) Section 5-1.1-A, the following assets are among those included when calculating the elective share:
Probate property (assets that pass through the will)
Property held in joint tenancy with the right of survivorship
Payable on death accounts
It’s important to note that not all assets are included. For instance, property acquired after the death of the spouse, or certain irrevocable trusts created during the deceased spouse’s lifetime, may not count toward the elective share.
Yes, a spouse can voluntarily waive their right of election in certain situations. This is often done through a prenuptial or postnuptial agreement, where both spouses agree to waive their elective share in exchange for other financial arrangements. Such agreements need to be made voluntarily and with full financial disclosure to be enforceable.
In addition, waivers can be executed during the marriage if the spouse agrees to relinquish this right, but these waivers are typically subject to close legal scrutiny and must comply with strict legal standards to be valid.
If a surviving spouse is disinherited, they have a limited amount of time to exercise their right of election. In New York, the surviving spouse must file a notice of election with the Surrogate’s Court within six months from the time the estate is admitted to probate, or, within two years from the date of death, whichever comes first.
If the surviving spouse does not file within this time frame, they may lose their right to claim their elective share.
In most cases, it is nearly impossible to fully disinherit a spouse in New York due to the right of election. However, there are some rare circumstances where disinheritance might be possible:
Divorce: Once a divorce is finalized, the former spouse is no longer considered a legal spouse and has no right to inherit.
Abandonment or failure to support: If a spouse abandons the deceased or fails to fulfill their duty of support, they may forfeit their right to claim an elective share, though this can be difficult to prove.
New York law provides strong protections for surviving spouses to ensure they are not left destitute after the death of their partner. If you’re considering disinheriting a spouse or if you’re the surviving spouse concerned about being left out of a will, it’s important to understand your rights and options. I'm an attorney who can help guide you through these complex issues. Contact me today to discuss your estate plan or your rights as a surviving spouse.