There is perhaps no area of law more riddled with bad advice, half-truths, and “cocktail party wisdom” than probate. As a New York estate planning attorney with over 30 years of experience, I hear these misconceptions every day. “I don’t need a lawyer; I have a Will.” “My spouse gets everything automatically.” “Probate is cheap.”
I am Russel Morgan, and my firm, Morgan Legal Group, has successfully guided over 1,000 families through the New York Surrogate’s Courts. I have seen firsthand that believing these myths is not harmless. It is expensive. It destroys family harmony. And in the complex legal and economic landscape of 2025-2026, it can cost your heirs tens of thousands of dollars and years of their lives.
The New York probate system is one of the most complex, bureaucratic, and expensive in the country. To navigate it—or better yet, to avoid it—you must separate fact from fiction. This comprehensive guide will debunk the 7 most dangerous myths about NY probate and provide the actionable truth you need to protect your legacy.
Misconception #1: “I Have a Will, So My Family Avoids Probate.”
The Truth: A Will is a one-way ticket TO probate court.
This is the single most common and damaging myth. Many people spend money drafting a Last Will and Testament believing they have solved the problem. They haven’t.
A Will is a set of instructions for the judge. It has absolutely no legal authority until a Surrogate’s Court judge validates it and issues “Letters Testamentary” to your Executor.
- The Process: Your family must hire a lawyer, file a petition, pay fees, notify all relatives, and wait for the court.
- The Result: A Will ensures your wishes are followed *eventually*, but it guarantees the process will be public, slow, and court-supervised.
The Real Solution: To actually *avoid* probate, you need a Revocable Living Trust. Assets in a trust bypass the court entirely.
Misconception #2: “Probate is Quick and Easy.”
The Truth: In NYC, probate is a marathon, not a sprint.
In 2025, the Surrogate’s Courts in Queens, Brooklyn (Kings County), Nassau, and Suffolk are dealing with significant backlogs.
- Best Case Scenario: For a simple, uncontested estate with a perfect Will, probate might take 7-9 months.
- Common Scenario: If there are delays, missing heirs, or minor administrative issues, it often takes 12-18 months.
- Worst Case Scenario: If a relative contests the Will, the estate can be frozen in litigation for 3-5 years.
During this time, your assets are frozen. Your family cannot sell your house. They cannot access your bank accounts to pay the mortgage or property taxes. They are in financial limbo.
Misconception #3: “Probate Isn’t That Expensive.”
The Truth: Probate is a “voluntary tax” on your estate.
The costs of probate in New York are set by law and are based on the *value* of your assets, not the amount of work involved.
1. Executor Commissions (SCPA 2307): The person you name to handle your estate is entitled to a statutory fee.
- 5% on the first $100,000
- 4% on the next $200,000
- 3% on the next $700,000
- 2.5% on the next $4,000,000
The Math: If you own a modest home in NYC worth $1.5 million:
Executor Commission = Roughly $50,000+.
Add in court filing fees ($1,250), legal fees (often thousands), and appraisal fees. A “simple” probate can easily consume 5-7% of your estate.
Misconception #4: “My Spouse Automatically Gets Everything.”
The Truth: Not if you have children.
If you die *without* a Will (intestate), New York law (EPTL 4-1.1) decides who gets your assets. Many assume the spouse gets 100%. This is false.
- If you have a spouse and children: Your spouse gets the first $50,000 + 50% of the balance. Your children get the other 50%.
The Disaster: Imagine you own a home jointly with your spouse, but you hold a separate bank account or brokerage account in your name only. If you die, your spouse might have to split that money with your adult children—or worse, with a court-appointed guardian for your minor children. This can cause massive family conflict and financial hardship for the survivor.
Misconception #5: “I Have a ‘Small Estate,’ So I Don’t Need to Worry.”
The Truth: In New York, almost no homeowner has a “Small Estate.”
New York has a simplified process called “Voluntary Administration” for small estates.
The Limit: The cap is $50,000 in personal property.
The Catch: This *never* applies to real estate. If you own a house, a condo, or even a crumbling shack worth $100,000, you do *not* have a small estate. You must go through full probate. Even a tenant-shareholder in a Co-op must go through full probate because the shares are usually worth more than $50k.
Misconception #6: “I Can Just Use a DIY Form or Online Service.”
The Truth: DIY Planning is the #1 cause of Probate Litigation.
The New York Surrogate’s Court is incredibly strict about formalities.
- The Staple Rule: If you remove the staples from your Will to scan it, the court may presume you tampered with it and reject it.
- The Witness Rule: If your witnesses didn’t sign within 30 days of each other, or didn’t add their addresses, the Will fails.
- The “Heir” Rule: An online form won’t tell you that you need to identify and notify your “distributees” (next of kin), even if you disinherited them.
We have handled countless cases where a family brought us a “LegalZoom” will that was invalid, forcing the estate into intestacy and costing ten times what a proper plan would have cost.
Misconception #7: “My Debts Die With Me.”
The Truth: Creditors are the first in line.
Probate is basically a debt-collection process. Before your heirs get a dollar, the Executor *must* pay off all legitimate debts, taxes, and funeral expenses.
The Medicaid Trap: If you received Medicaid benefits (for nursing home or home care) after age 55, the state can file a claim against your estate for “Estate Recovery.” They can force the sale of your home to pay back the cost of your care. A properly structured Medicaid Asset Protection Trust avoids this; a Will does not.
Why You Need an Expert Strategy for 2026
In 2026, the stakes are rising. The federal estate tax exemption is scheduled to be cut in half. New York’s Medicaid look-back rules are fully tightening. Relying on misconceptions is no longer just risky; it is reckless.
The Morgan Legal Group Approach:
We don’t just write documents; we build strategies. We look at your assets, your family dynamics, and the tax landscape to create a plan that:
- Avoids Probate using Revocable Trusts.
- Protects Assets from Medicaid and creditors.
- Minimizes Taxes using advanced gifting strategies.
Conclusion: Knowledge is Your Best Defense
Probate is not inevitable. It is a choice. You can choose to subject your family to the delays, costs, and publicity of the New York courts, or you can choose to create a private, efficient plan.
Don’t let a myth destroy your legacy. Schedule a consultation with Morgan Legal Group today. We serve clients throughout New York City and Long Island. Let us give you the truth and the tools you need to protect your family.
For more details on the probate process and court fees, you can visit the official New York City Surrogate’s Court website.
