Detailed answer — How New York treats assets that pass by right of survivorship
Short answer: In New York, assets that pass automatically to a surviving owner by right of survivorship (for example, a joint bank account titled as joint tenants with right of survivorship or property held as tenancy by the entirety between spouses) are generally non‑probate assets and do not belong on the personal representative’s probate inventory as estate property. However, there are important exceptions and practical steps you should know before deciding not to list something.
What “right of survivorship” means
Right of survivorship means ownership passes immediately to the surviving co‑owner when one owner dies, without needing probate. Common forms that create survivorship transfers:
- Joint tenancy with right of survivorship (JTWROS)
- Tenancy by the entirety (married couples)
- Payable‑on‑death (POD) / Transfer‑on‑death (TOD) account designations
- Retirement accounts and life insurance with named beneficiaries
When you generally do NOT include the asset on the probate inventory
If the decedent had no ongoing ownership interest at death because title or a beneficiary designation operated to transfer the asset automatically to someone else, that asset typically is not part of the decedent’s probate estate and is not listed on the inventory of estate property filed in Surrogate’s Court. Examples:
- A bank account titled in the decedent and mother as JTWROS that immediately passed to the mother at death.
- Real property owned as tenancy by the entirety that passed to the surviving spouse.
- An IRA or life insurance policy that named the mother as beneficiary and therefore paid directly to her.
Important exceptions and reasons you might still need to disclose or list an asset
Even if an asset passed outside probate, you should not assume it is irrelevant to the estate process. Situations that can require inclusion or disclosure:
- Decedent retained a partial interest: If the decedent did not actually relinquish all rights (for example, the account had language allowing the decedent to withdraw or close it), a portion may still be estate property.
- Constructive trust or disputed title: If someone alleges the survivorship title was a sham (added to avoid creditors or for convenience) the personal representative may need to assert claims or list the asset when pursuing recovery for creditors or beneficiaries.
- Creditor claims and estate administration: Creditors can generally pursue the probate estate. Some claims may reach non‑probate assets in narrow circumstances (fraudulent transfers, joint accounts created to defeat creditors, etc.).
- Tax or benefit recovery issues: For estate‑tax or Medicaid recovery purposes, certain transfers may be treated as part of the decedent’s estate or otherwise examined. Tax rules are complex and different from probate rules.
- Surrogate’s Court practice: When a Surrogate’s Court requests full disclosure (for example, during an accounting or contested proceeding), the court may ask about non‑probate transfers to determine rights of parties, taxes, or to resolve disputes.
Practical steps to take
- Confirm how each asset was titled at the decedent’s death. Obtain account statements and the death certificate.
- Check beneficiary designations and the exact wording of account title. Names like “joint tenants with right of survivorship” or “POD/TOD” show survivorship intent.
- If you are the personal representative, keep a separate record of non‑probate assets (who received them and how) even if you do not include them on the formal inventory. That helps if the court, beneficiaries, or creditors ask.
- If a beneficiary or creditor disputes survivorship (claims the title was a sham or contributions matter), consult an attorney quickly — disputes can change what must be listed or pursued in court.
- If you expect estate tax, Medicaid recovery, or complex questions about inclusion of transfers for tax purposes, speak with a tax lawyer or accountant. State probate rules differ from tax rules.
Where to look in New York law and courts
Surrogate’s Court and New York law govern probate procedures and inventories. Helpful official resources:
- New York Surrogate’s Court Procedure Act (SCPA) — general Surrogate’s Court rules and procedures: https://www.nysenate.gov/legislation/laws/SCPA
- New York Estates, Powers & Trusts Law (EPTL) — rules about wills, intestacy, and certain transfers: https://www.nysenate.gov/legislation/laws/EPTL
- New York State Unified Court System — Surrogate’s Court information and forms: https://www.nycourts.gov/courts/surrogates/
- New York State Department of Taxation and Finance — estate tax guidance: https://www.tax.ny.gov/pit/estate_tax/
When to talk to an attorney
Consider getting legal advice if:
- Someone contests the survivorship claim or you suspect the title was changed to avoid creditors.
- The estate has significant assets and potential tax exposure.
- Creditors make claims that might reach non‑probate assets.
- You are unsure how to report non‑probate transfers in a required accounting or Surrogate’s Court filing.
Bottom line: Do not put assets that actually passed automatically by right of survivorship on the probate inventory as estate property in New York. Still, document them, verify titles and beneficiary designations, and be ready to disclose them if a court, creditor, or beneficiary requests information — and consult a lawyer if any dispute, tax, or recovery issue arises.
Helpful hints
- Keep a clear checklist of every asset, its title at death, and who received it — even if you don’t list it on the formal inventory.
- Get certified copies of the death certificate early; financial institutions and other institutions will require them to release non‑probate assets.
- Ask financial institutions for their procedures for survivorship transfers; some require paperwork from the surviving owner but do not involve probate.
- If an account is titled jointly but the decedent paid all the funds, the estate or other beneficiaries may have claims — preserve records of contributions.
- When in doubt, disclose the existence of a non‑probate transfer on your initial communications with the Surrogate’s Court or your attorney to avoid surprises later.
Disclaimer: This article explains general legal concepts under New York law and is for informational purposes only. It is not legal advice. For advice about a specific situation, consult a licensed attorney.