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Are life insurance and retirement can be considered for probate

New York, NY |

are life insurance and retirement can be considered for probate? or they are considered sole property?(my husband has written a will and in his will his son from his past marriage is beneficiary of life insurance and retirement, can I probate it?)


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Attorney answers 3


Probating the Will is not going to do you any good if the assets are titled in such a way that they bypass probate, (and thereby bypass the terms of the Will). A Will only controls assets titled in the decedent's name alone, with no beneficiaries or joint owners.

James Frederick

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thanks for your reply, does it mean that I have share in life insurance and retirement? no matter is in his son 's name?

James P. Frederick

James P. Frederick


I think you are responding to Mr. Harvey's answer. It appears that NY law may give you a way to access some of these assets as part of your share. I would contact Mr. Harvey to discuss this further.


Generally assets that have beneficiaries designated become the property of beneficiary. They are usually not considered "probate" assets. However, as a surviving spouse you may be entitled to elect against certain assets that pass outside of the probate estate. Simply stated, you may be entitled to a percentage of the probate assets even though a beneficiary has been named.

This area of law is complex; I urge to consult with an experienced estate attorney.

This answer does not constitute legal advice and no attorney client relationship has been formed. Before choosing a course of action, it is always advisable to seek the advice of an attorney in your area.


Attorneys Karvay and Frederick are correct. It is unclear from your question, but I am hopeful that your husband is still alive and can address this issue with proper estate planning. For example, your husband could create a Revocable Trust and name the trust as the beneficiary of his life insurance, retirement accounts and transfer his other assets to the trust via his Will. Then, if you survive your husband, you could be the beneficiary of the Revocable Trust during your lifetime and his son could benefit after your death. In this way, both you and his son would benefit from his assets. Unfortunately, if your husband has passed away, it is too late for this type of planning. Either way, please consult an experienced New York attorney to assist you in this matter. Good luck to you.

This information is presented as a public service. It should not be construed to be formal legal advice nor considered to be the formation of a lawyer/client relationship.