What are non-probate assets and how to recover them?  

When a person passes away, their estate is often comprised of probate assets and non-probate assets.  Probate assets are assets that will be distributed according to the decedent’s Last Will & Testament.  These assets are titled solely in the decedent’s name.

Non-probate assets are sometimes called testamentary substitutes.  These assets have beneficiaries associated with the account or property.  The following are a list of testamentary substitutes:

  • Totten trust accounts, Payable on Death accounts (P.O.D.) or In Trust for Accounts (ITF)-  These accounts allow a person to control their funds and when they pass away the beneficiary listed on the account will receive the funds upon their passing. The beneficiary listed will have to show the bank or brokerage a death certificate to receive the funds.
  • Retirement Accounts– Retirement accounts should have beneficiaries attached to them.  They will pass outside the probate estate unless there is not a beneficiary listed.  To recover the retirement account the beneficiary listed should provide the retirement account company with a death certificate.
  • Life Insurance– Life insurance proceeds pass outside of the probate estate if there is a beneficiary listed. The beneficiary would need to file a claim form and a death certificate to receive the funds.
  • Jointly Held Property– Joint accounts pass automatically to the survivor of the account.
  • Real Property that is held as Joint Tenants with Rights of Survivorship or Tenants by the Entirety– These properties pass automatically to the survivor. The survivor should file a deed to clarify the chain of title. For more information on how real property can be titled, click here.
  • Trust Property– Property that is funded in a trust will follow the terms of the trust and pass outside the probate estate. The trustee must follow the terms of the trust.


Daredevil Dan Example:

Daredevil Dan went to the Bronx to watch the Yankees play.  He was too engrossed in his bucket of chicken fingers at the game and was struck by a foul ball, and that was the end of Daredevil Dan.  Daredevil Dan went to Miller & Miller Law Group PLLC and executed a Last Will & Testament.

Daredevil Dan had a joint bank account with his wife, Brittany, with $25,000 in it.  He had a retirement account with $100,000 which had his wife designated as his beneficiary. He owned a property in Red Hook solely in his name. He owned a property in Park Slope with his wife titled as tenants by the entirety.  He owned a brokerage account worth $20,000 which was titled in trust for his son, Thomas and he owned a bank account with $40,000 in his name alone.

According to these facts, the non-probate assets that would go to Brittany would be the joint bank account for $25,000, the property in Park Slope, and the retirement account with $100,000.  Brittany should have the deed for the property in Park Slope changed solely to herself as surviving tenant by the entirety.

Thomas would be able to collect the $20,000 from the brokerage account by providing them with a death certificate.

The probate assets in Daredevil Dan’s estate would be the property in Red Hook and the bank account with $40,000 in Daredevil Dan’s name alone. The disposition of this property would be controlled by Daredevil Dan’s Last Will & Testament.


For questions about probate or estate planning contact Miller & Miller Law Group PLLC.

What commissions are an Executor or Administrator entitled to?

An Executor or Administrator of a decedent’s estate is entitled to a commission.  The job of the Executor or Administrator is to gather all the assets of the decedent, pay the liabilities, and distribute the funds according to the decedent’s Last Will & Testament or according to the intestacy rules of New York.  The executor or administrator’s commission is based off the size of the estate.

Assets Excluded from Computing Commissions

Certain assets are excluded in calculating the executor’s commission.  Assets not included in the executor’s commission are:

  • Testamentary Substitutes- Assets that pass outside of the estate and have beneficiaries listed. These assets include, in trust for (ITF) accounts, payable on death accounts (P.O.D.),   assets with rights of survivorship, or joint accounts.
  • Real Estate not sold by the Executor
  • Specific bequests- for example, my gold Rolex watch to my son, Jimmy.

How Commissions are Calculated

Commissions for executors and administrators are codified in SCPA 2307. Executor and Administrator fees are calculated as follows:

  • For receiving and paying out all sums of money not exceeding $100,000 at the rate of 5 percent.
  • For receiving and paying out any additional sums not exceeding $200,000 at the rate of 4 percent
  • For receiving and paying out any additional sums not exceeding $700,000 at the rate of 3 percent.
  • For receiving and paying out any additional sums not exceeding $4,000,000 at the rate of 2 1/2 percent.
  • For receiving and paying out all sums above $5,000,000 at the rate of 2 percent.

Executors are also entitled to 5% of gross rents received on behalf of the estate.

Executors Commissions/Fees count as Taxable Income

Executors should be aware that executor’s commissions are considered taxable income. However, inheriting property from an estate is not considered income.  If the executor is a sole beneficiary, they could waive their commissions and receive their funds as an inheritance and not have to pay income taxes.

Daredevil Dan Example

On December 4, 2015, Daredevil Dan went to Miller & Miller Law Group PLLC and executed a Last Will & Testament. The Last Will & Testament left Daredevil Dan’s watch collection to his friend, Ryan.   The remainder of his estate was to be left equally between his son Jeremy, his daughter, Jenny, and his friend Brian.  He made Jeremy the executor of his will.

On March 26, 2016, Daredevil Dan tried to recreate Houdini’s famous water escape, unfortunately Daredevil Dan was not very good at picking locks, and that was the end of Daredevil Dan.

Daredevil Dan passed away with the following assets:

  • A joint bank account worth $20,000 with Ryan listed as the joint owner
  • A 2 family home in Cobble Hill, Brooklyn worth $2,100,000. Daredevil Dan rented the top floor of his home for $3,000 a month.
  • A bank account with $200,000 solely in Daredevil Dan’s name and
  • A watch collection worth $30,000.

What assets of Daredevil Dan’s are commissionable to  Jeremy as executor?

  • He would not be entitled to any commissions for the joint bank account with Ryan. Ryan would become the sole owner of the $20,000 of the account after Daredevil Dan’s passing
  • Jeremy would only be entitled to commissions if he sold the Cobble Hill property. For this example we will assume Jeremy sold the property for $2,100,000. He also collected rent from the tenant on behalf of the estate for eight (8) months at $3,000 a month totaling $24,000 collected in rent.
  • Jeremy would be entitled to commissions from the $200,000 bank account marshaled.
  • Jeremy would not be entitled to any commissions on the watch collection and would turn the watch collection over to Ryan.

The size of Daredevil Dan’s estate would be as follows:

-$2,100,000 for the sale of the Cobble Hill property

-$24,000 in Income from the upstairs Tenant and

-$200,000 from Daredevil Dan’s bank account

Totaling $2,324,000

According to SCPA 2307, Jeremy’s commissions would be

5%    of $100,000 =          $5,000

4%     of $200,000 =         $8,000

3%     of $700,000 =         $21,000

2.5%  of $1,324,000 =     $33,100

              $2,324,000       $67,100

Estimated Total Commission for Jeremy as Executor of Daredevil Dan’s Estate: $67,100.00

Jeremy would also be entitled to 5% of the $24,000 in rent collected = $1,200.00

Jeremy’s full executor’s commission would equal $68,300.00.  If Jeremy were to take his executor’s commission, this would be taxable to Jeremy and must be included on his income tax return for the year.

As illustrated above, there are many intricacies in calculating an executor’s commission and administering a decedent’s estate. Contact Miller & Miller Law Group PLLC for help regarding the administration or probate of an estate.

What is an Ancillary Probate or Ancillary Administration Proceeding?

When a person passes away with real property in multiple states, an ancillary proceeding may be necessary. The primary probate proceeding (if the person passed away with a Last Will & Testament) or primary administration proceeding (if the person passed away without a Last Will & Testament) is commenced in the State and County where the person was domiciled prior to passing away.  Once the Executor or Administrator is given legal authority from the court, that Executor or Administrator can start an Ancillary Probate or Administration proceeding in the State where the decedent owned real property but was not his primary residence.

Daredevil Dan Example:

Daredevil Dan owns a brownstone in Park Slope, Brooklyn and a house in Scottsdale, Arizona which he snowbirds to during the cold Brooklyn winters.  He is domiciled in Park Slope and he spends the majority of the year at his brownstone.  Daredevil Dan went to grab a candy bar from a vending machine, the candy bar got stuck and when Daredevil Dan shook the machine, the machine fell on him, and that was the end of Daredevil Dan.  Daredevil Dan went to Miller & Miller Law Group PLLC and created a will that left everything equally to his two friends, Don and Meg.  He made Don the executor of his will.  Don would have to start a Probate proceeding in Kings County because that is where Daredevil Dan was domiciled.  Following the grant of Letters Testamentary by the Kings County Surrogates Court, Don would then have to start an ancillary probate proceeding in Arizona to gain authority to sell or transfer the Scottsdale home.

Probate proceedings and ancillary probate proceedings can end up being very costly due to filing fees and attorney fees. Both a probate proceeding and ancillary probate proceeding can be avoided with the use of a revocable trust.

Daredevil Dan Trust Example:

The facts in the above Daredevil Dan Example are the same, however, instead of creating a will at Miller & Miller Law Group PLLC, Daredevil Dan created a Revocable Living Trust.  He deeded both his property in Park Slope, Brooklyn and his property in Scottsdale, Arizona into the trust.  The trust terms had Daredevil Dan as the trustee of the trust and upon his passing his friend Don would take over as trustee. The trust terms stated that upon Daredevil Dan’s passing both properties in Arizona and New York would be sold and the proceeds split between Don and Meg. Following Daredevil Dan’s vending machine accident, Don would have legal authority to sell both properties as trustee and would avoid  probate in New York and ancillary probate in Arizona.

If you own real property in multiple states, a trust is a great way to avoid probate and ancillary probate. Contact Miller & Miller Law Group PLLC for any questions you may have regarding trusts, probate, and ancillary probate.

Seven Benefits of a Revocable Living Trust



Many Americans simply leave a will to distribute their assets upon their passing.  However, the creation of a Revocable Living Trust creates several benefits unavailable to those simply leaving a will. Here are seven benefits to creating a Revocable Living Trust

1) Avoiding Probate- A great benefit of a living trust is that it avoids probate. Probate means the official proving of a will.  This official proving is done at the Surrogates Court in the county where the person was domiciled before their passing.  In order to probate a will, a copy of the will must be distributed to everyone who would inherit from the person’s estate if there were no will.  In some cases, locating these people who would inherit can be very difficult, costly, and time consuming.  By creating a trust, this issue can be avoided.

2) Privacy- Another key distinction between leaving a will and creating a living trust is the level of privacy. A living trust is not made public and upon death of the grantor, the distribution of an estate is done in private.  A will becomes a public document once it is probated and anyone can view how you left your estate upon your passing.

3) Quicker access to funds- Probating a will and having the Surrogates Court grant authority to the executor can take months. With a Revocable Living Trust, the successor trustee can gain access the person’s funds quickly and distribute them according to the terms of the trust.

4) Revocable– The trust can be changed, revoked, or amended at any point during the grantor’s life. Once the grantor dies, the trust becomes irrevocable.

5) Protect your beneficiaries from creditors– Terms can be placed in the trust to protect your beneficiaries from creditors. If a trust owns the beneficiaries funds, creditors cannot gain access to those funds.

6) Avoid Ancillary Probate– If a person has property in multiple states, they can deed or transfer all property into the trust. Upon the passing of the grantor, the property can be distributed according to the trust. If a person has a will and resides in New York and has property in Florida, a court proceeding for probate would have to be started in New York. Following the executor given legal authority under the will by the Surrogates Court of New York, a second proceeding for Ancillary Probate would have to be started in Florida in order for the executor to collect the property in that state.

7) More Specific Terms– A trust gives the grantor more options as to when a beneficiary receives an inheritance or what condition is necessary for the beneficiary to receive their inheritance.

A Revocable Living Trust is more complex and expensive than a simple will, however, there are many benefits associated with it.