When a loved one passes away, families often face grief alongside complex legal questions, and one process that causes the most stress and confusion is probate, the legal method of settling someone’s estate after death. In New York, the requirements and timelines are strict and vary by county, and even small missteps can lead to delays or disputes among heirs.
- Probate in New York is handled by the Surrogate’s Court in the county where the decedent lived, and is generally required for assets titled solely in the decedent’s name.
- The process is governed primarily by two state laws: the Surrogate’s Court Procedure Act (SCPA) and the Estates, Powers and Trusts Law (EPTL).
- Timelines vary widely: an uncontested, straightforward estate can resolve in a few months, while a contested or complex estate can take a year or more.
- Smaller estates may qualify for simplified “voluntary administration” instead of full probate.
- Assets with a named beneficiary, held jointly with survivorship rights, or placed in a funded trust generally pass outside of probate.
What Is Probate and Why Does It Matter in New York?
Probate is the court-supervised process for settling a person’s assets, debts, and final wishes after they die. A judge reviews the person’s will, confirms it’s valid, and authorizes the named executor to carry out its terms.
If a person has a valid will: probate confirms that it is recognized, and assets pass to the correct people.
If a person dies without a will or the will is invalid: state law determines how property is divided. That process, called Administration, works similarly to probate but without a valid will guiding it. This process is a little bit more complex.
Probate matters beyond just formality. It’s the only way to legally clear title so certain assets can be sold, refinanced, or transferred, and it protects the executor from personal liability for distributing property incorrectly.
In New York, this shows up concretely. Many families own co-ops, condos, or family businesses solely in the decedent’s name, and these assets typically can’t be transferred, sold, or managed until probate or administration is complete. Because property values across much of New York tend to be high and family ownership structures can be complicated (multiple heirs, blended families, co-op board approval requirements), getting probate right the first time carries more weight here than it might for a simpler, lower-value estate.
The Laws That Govern Probate in New York
Two different New York statutes shape how probate works, and each one plays a distinct role: the Surrogate’s Court Procedure Act (SCPA) and the Estates, Powers and Trusts Law (EPTL).
The SCPA sets the procedural rules: how to file a petition, what notice must be given, how the court establishes jurisdiction, and how executors are compensated.
The EPTL sets the substantive rules: what makes a will valid, how an estate is distributed if someone dies without one, and what rights a surviving spouse has regardless of what the will says.
Because probate is a matter of state law, the underlying rules apply the same way in every county. In practice, each Surrogate’s Court, including each of the five NYC borough courts, layers its own local filing preferences on top of the state rules, and individual judges often manage their caseloads differently.
| Statute | What It Covers |
|---|---|
| SCPA § 1402 | What must be included in a probate petition |
| SCPA §§ 1301–1312 | Voluntary administration for small estates |
| SCPA § 2307 | Executor and administrator commissions |
| EPTL § 3-2.1 | Requirements for a will to be validly executed |
| EPTL § 4-1.1 | How an estate is distributed when there’s no will (intestacy) – Read below |
| EPTL § 5-1.1-A | A surviving spouse’s right of election |
How New York Distributes an Estate Without a Will
When someone dies intestate (without a valid will), EPTL § 4-1.1 sets out who inherits and in what shares. The breakdown depends on which close family members survive:
- Spouse, no children: the surviving spouse inherits the entire estate.
- Spouse and children: the spouse receives the first $50,000 plus half of what remains; the children share the rest. (This is a separate $50,000 figure from the small-estate voluntary administration limit mentioned earlier in this guide, the two rules aren’t related.)
- Children, no spouse: the estate is divided equally among the children.
- No spouse or children: the estate passes to more distant relatives, such as parents or siblings, in an order set by statute.
Initiating a Probate Case in New York County
Starting probate in New York requires filing a petition with the Surrogate’s Court in the county where the decedent lived, along with the original will (if there is one) and a certified copy of the death certificate.
The petition itself must include the specific details SCPA § 1402 requires: information about the decedent, the beneficiaries named in the will, the heirs-at-law who would inherit if the will were invalid, and an estimate of the estate’s value.
In practice, “the petition” is really a packet, often a dozen or more documents once you include everything specific to the facts of the case. The packet also includes a proposed decree, along with waivers or consents from the other beneficiaries and distributees where they’re available.
Who can start a case?
If there’s a valid will, the person named as executor has legal standing to file, known in court papers as “the petitioner.” If there’s no valid will, New York law gives certain relatives priority to serve as administrator instead, typically the surviving spouse first, then children, then other close family members, and one of them files the petition for administration.
Either way, it’s the executor or eligible relative who has to bring the case, not the attorney. What an attorney does is prepare every document in that packet, walk the petitioner through the filing, and represent them in front of the judge, which is exactly the part most people find overwhelming to handle alone.
A checklist covers the paperwork, but it doesn’t capture everything a court will ultimately need to know. Before filing, we walk clients through a detailed intake conversation about the family and the decedent’s history, because clients often don’t realize which small details matter. A fact a client assumes is irrelevant can end up being the one that determines who has to be notified or how smoothly the case moves forward, so we try to surface and plan for those issues before they become problems in front of a judge.
A basic checklist for starting probate in New York
- Original will and any codicils (amendments to the will)
- Death certificate (available through the New York City Department of Health)
- List of family members and heirs (“distributees”)
- Petition for probate (the court form)
- Court filing fee (which varies by estate size, typically $45 to $1,250)
- List of assets passing through Estate (Estate Assets/Probate Assets)
Filing a probate petition on your own can be overwhelming; one missing document can delay a case for months. Our attorneys prepare and file every document your case requires. Schedule a free consultation.
The Role of the Executor or Administrator
Every estate that goes through probate needs someone with legal authority to manage it. New York calls this person a fiduciary. What they’re called and how they’re chosen depends on whether the decedent left a valid will.
- Executor: the person named in the will to handle the estate. After the court admits the will to probate, it confirms the executor’s authority by issuing Letters Testamentary.
- Administrator: the person the court appoints when there is no will. New York law sets the order of priority: the surviving spouse first, then children, grandchildren, parents, siblings, and other relatives. The court issues this person Letters of Administration.
- Administrator c.t.a. (“with the will annexed”): someone the court appoints when there is a will, but the named executor (and any alternate) has died, declines to serve, or isn’t eligible.
Who can serve. New York sets the same basic eligibility rules for executors and administrators. Generally, a fiduciary must be at least 18, mentally competent, and free of any felony conviction. A person who is not a U.S. citizen and lives outside the U.S. faces extra restrictions, such as serving alongside a New York resident co-fiduciary. If this applies to your situation, our office can walk you through the requirements.
Bonds. Administrators are usually required to post a bond, which works like an insurance policy protecting the estate’s beneficiaries and creditors. Many wills waive the bond requirement for the executor.
What the job involves. Once appointed, the executor or administrator can access and manage the decedent’s bank accounts, sell property, collect debts owed to the estate, and pay outstanding bills. The role comes with real responsibility. The fiduciary must notify all interested parties, keep careful records, and in some cases (typically when heirs are unknown or can’t be located) publish notice of the proceeding. Many fiduciaries open a dedicated estate account to keep estate funds separate from their personal money.
Getting paid for the work. Executors and administrators don’t have to do this for free. New York law (SCPA § 2307) entitles them to a commission. It’s calculated on a sliding scale: each rate applies only to the portion of the estate within that tier, not to the whole estate.
| Estate Value (this tier) | Commission Rate |
|---|---|
| First $100,000 | 5% |
| Next $200,000 | 4% |
| Next $700,000 | 3% |
| Next $4,000,000 | 2.5% |
| Above $5,000,000 | 2% |
The estate generally has to stay open for a period to let creditors come forward, typically around seven months from when the executor or administrator is appointed, before assets can be safely distributed. If the estate is large enough to owe New York estate tax, that return is generally due within nine months of the date of death. Missing these windows can create real problems.
Non-Probate Assets vs. Probate Assets in New York
Whether an asset goes through probate in New York depends on how it’s titled. Assets with a built-in transfer mechanism, a named beneficiary, joint ownership, or a trust, skip probate and pass “by operation of law.” Assets titled solely in the decedent’s name, with no such mechanism, must go through the Surrogate’s Court.
Non-probate assets typically include:
- Accounts and policies with a named beneficiary: life insurance, retirement accounts (401(k)s, IRAs, pensions), and payable-on-death (POD) or transfer-on-death (TOD) bank and brokerage accounts
- Jointly held property with survivorship rights: bank or brokerage accounts, or real estate, owned as joint tenants with right of survivorship, or tenancy by the entirety between spouses
- Assets held in a properly funded trust, which is why our attorneys generally recommend a trust as part of a comprehensive estate plan
Probate assets typically include:
- Real estate or a co-op titled solely in the decedent’s name, with no joint owner or survivorship provision
- Bank or brokerage accounts held solely in the decedent’s name, with no POD or TOD designation
- Personal property with no separate transfer mechanism: vehicles without TOD registration, jewelry, art, and other belongings
- A solely owned business interest, such as a sole proprietorship or single-member LLC, with no succession plan
- Property owned as tenants in common, since a tenancy-in-common share does not pass automatically and becomes a probate asset
A detail families often miss: a beneficiary designation only avoids probate if it’s current. If a listed beneficiary predeceased the account holder with no contingent beneficiary named, or an old form still lists an ex-spouse, that asset can fall back into probate.
A New York-specific nuance: some states let a transfer-on-death deed move a house or condo outside of probate. New York does not offer this option for real estate. TOD registration here is limited to vehicles and securities accounts, so a solely owned New York home or co-op can only avoid probate through joint ownership, a trust, or similar planning.
Worth knowing: even non-probate assets aren’t always entirely outside the court’s reach. Under a surviving spouse’s right of election (EPTL § 5-1.1-A), certain non-probate transfers can be counted as “testamentary substitutes” when calculating what a spouse is legally entitled to receive.
| Asset Type | Goes Through Probate? |
|---|---|
| Life insurance / retirement accounts with a named beneficiary | No |
| POD/TOD bank and brokerage accounts | No |
| Real estate or accounts held jointly with survivorship | No |
| Assets in a funded revocable trust | No |
| Solely owned home or co-op | Yes |
| Solely owned bank account, no POD named | Yes |
| Vehicle with no TOD registration | Yes |
| Property owned as tenants in common | Yes (decedent’s share) |
| Solely owned business interest, no succession plan | Yes |
Common Challenges in the New York Probate Process
Several issues come up during the New York probate process that families should be aware of.
Claims against the estate. Estranged relatives, business partners, current or former spouses, non-spouse life partners, and creditors, including the IRS and Medicaid, can all bring claims that must be resolved before the estate can be closed and assets distributed.
Unknown assets or heirs. Details about a decedent’s business interests, debts, or family history aren’t always known even to close relatives. Locating this information, particularly when the decedent had family living abroad or no family in the United States at all, can be both time-consuming and costly.
Real estate and co-ops. Transferring co-op shares through probate often requires board approval and can take longer than other property types. Co-ops are treated differently than condos or houses because what’s owned is shares in a cooperative corporation, not real property itself.
Incomplete disclosures. Clients sometimes withhold information when retaining an attorney, hoping certain details won’t affect the case. In practice, these details tend to surface eventually. Being fully forthcoming from the outset allows an attorney to plan for issues in advance rather than reacting once they become a problem.
Improperly executed wills. For a will to be valid under EPTL § 3-2.1, it must be in writing, signed by the testator, and signed by two witnesses within the statutory timing requirements. Issues with witnesses, notarization, or handwritten changes to a printed will can all affect validity, and if a will wasn’t properly executed, that can’t be fixed after the person has passed. An attorney reviewing the will early can catch obvious problems, though some issues only surface once someone is working closely on the case.
Contested wills. Disputes over a will’s validity, often centered on the decedent’s mental capacity, undue influence, or fraud, are not uncommon in high-value or complex estates.
When family or assets span multiple states or countries. Probate law varies significantly by state, and even more by country. An estate with property or heirs outside New York can require coordination across jurisdictions and may raise its own tax questions. This is a situation our firm has handled before, including a case where a client passed away and every beneficiary was located outside the United States. It’s a scenario we encounter regularly, and one we’ve navigated successfully for families in similar situations.
It’s wise to keep copies of all communication and maintain a probate timeline.
How Much Does Probate Cost in New York?
Probate in New York doesn’t have one fixed cost. It’s made up of four main expenses: court filing fees, executor or administrator commissions, and miscellaneous costs like appraisals or bond premiums. Together, these determine the total cost of settling an estate, and each one scales with how large and complicated the estate is.
Court filing fees. As covered earlier in this guide, Surrogate’s Court filing fees scale with the size of the estate, generally ranging from $45 to $1,250.
Executor and administrator commissions. New York law sets a statutory commission for executors and administrators under SCPA § 2307, calculated as a percentage of the estate. This isn’t a fee paid to a third party, it’s compensation the fiduciary is legally entitled to, but it does reduce what’s ultimately left for beneficiaries, so most families think of it as part of the overall cost.
Other costs to plan for. Depending on the estate, families should also budget for certified copies of the death certificate, appraisals for real estate or a business interest, a surety bond if the court requires one, and accountant fees if the estate is large enough to require a New York estate tax return. Contested estates add another layer of cost, since litigation, additional court appearances, and expert witnesses can all extend both the timeline and the bill.
Every estate is different, and the only way to get a real number is to have a probate attorney review the specific details of the case.
How Long Does Probate Take in New York?
There’s no fixed timeline for probate in New York. A simple, uncontested small estate can resolve in a few months, while a contested or complex estate can take well over a year. Much of that variation comes down to two things: how complicated the estate itself is, and which court is handling it.
Probate is a matter of state law, and the rules are meant to apply uniformly across every Surrogate’s Court in New York. In practice, though, each court adds its own local rules on top of the state ones, and judges tend to manage their caseloads differently. The five boroughs of New York City are also the most densely populated part of the state, so those courts usually take longer to process a case than a similar one filed upstate, all things being equal.
Here’s a rough sense of what to expect, depending on the type of estate:
These are general ranges, not guarantees. The fastest way to get a realistic estimate for a specific situation is to talk to an attorney early, before small delays compound into bigger ones.
Ways to Simplify or Avoid Probate in New York
Probate can often be avoided in New York through small estate procedures, joint ownership, beneficiary designations, or a properly funded trust.
Small estates. If the estate’s personal property is valued under $50,000 and there’s no real estate, you can file for “voluntary administration” under SCPA §§ 1301–1312, typically simpler and faster than a full probate proceeding.
Joint ownership and beneficiary designations. Jointly owned assets or those with a named beneficiary, such as life insurance, IRAs, or POD bank accounts, transfer directly and skip probate.
Trusts. Assets held in a properly funded trust avoid probate court entirely, remaining private and reducing delay.
Many New Yorkers now build trusts and beneficiary designations into their planning specifically to help loved ones skip court. It’s worth reviewing account titles and beneficiary forms every few years to keep a plan current.
Want to minimize what your family has to take through probate? Our estate planning attorneys build trusts, beneficiary structures, and ownership plans designed to keep your estate out of Surrogate’s Court.
Which Surrogate’s Court Handles Your Case?
Probate is filed in the Surrogate’s Court of the county where the decedent lived. Each of New York City’s five boroughs has its own court:
- New York County Surrogate’s Court (Manhattan)
- Kings County Surrogate’s Court (Brooklyn)
- Queens County Surrogate’s Court
- Bronx County Surrogate’s Court
- Richmond County Surrogate’s Court (Staten Island)
- Nassau County Surrogate’s Court
- Suffolk County Surrogate’s Court
- Westchester County Surrogate’s Court
- Rockland County Surrogate’s Court
Common Misconceptions We See About Probate
Over the years, we’ve noticed that many clients come to us with the same assumptions about how probate works. Below are the misconceptions we hear most often in our firm, along with what we tell clients about each one.
“Probate costs should depend on the size of the estate. If the estate is only $55,000, why does it cost the same and take as long as probate for a much larger estate?”
At the start of a case, the court isn’t focused on how much the estate is worth. Its first concern is getting jurisdiction over everyone who has a legal interest in the estate. That means properly notifying everyone entitled to notice and collecting signed documents from the right people. The steps are the same whether the estate is worth $55,000 or $5 million.
New York does have a simpler process for “Small Estates” (SCPA Article 13), which applies to estates of $50,000 or less. It still goes through the same Court and still takes some time, but there are fewer steps. If the estate is worth even one dollar more than $50,000, it has to go through Full Probate, with all the same formal requirements as a much larger estate.
“Probate is expensive.”
Whether it’s expensive depends on what you compare it to. Like any professional service, probate takes work, and that work costs money. There may also be Court fees and charges from other third parties.
Skipping or delaying probate can cost much more. Creditors may make claims against the estate. If the heirs don’t act, the Court may appoint an outside party to manage the estate, which usually costs far more. Compared to the goal of getting the most value possible transferred to you, the cost of probate is relatively small. We encourage clients to focus less on the cost and more on what probate protects and delivers for them.
“My matter is simple. My neighbor just went through this and paid much less.”
We don’t think of any matter as “simple” or “complex.” Every situation is different. We look at the assets, the relationships among the heirs and other interested parties, and the full set of facts, and then decide how to proceed.
Stories we hear secondhand often leave things out. A neighbor may remember what they paid or what was done differently than it happened, or may not have fully understood the process. And even if their account is accurate, their facts may have been much simpler than yours. For example, a family with two adult children who both live in the same county where the estate is being probated is very different from a family with three children, where one struggles with addiction or mental illness and another lives in Paris. The second situation raises extra jurisdictional and family issues. That means more work, which means higher costs.
Glossary of Key Probate Terms
| Term | Meaning |
|---|---|
| Probate | The court-supervised process of validating a will and settling an estate under its terms |
| Testator | The person who made the will |
| Surrogate’s Court | The New York court that handles probate, administration, and related estate matters |
| Distributee | A person entitled to inherit under New York’s intestacy law |
| Executor | The person named in a will to administer the estate |
| Administrator | The court-appointed person who administers an estate when there’s no will |
| Letters Testamentary | Court document giving an executor legal authority |
| Letters of Administration | Court document giving an administrator legal authority |
| Citation | A formal notice requiring someone to appear or respond in a Surrogate’s Court proceeding |
| Decree | The court’s final order in a probate or administration proceeding |
| Intestate | Having died without a valid will |
| Testamentary Substitute | A non-probate transfer counted toward a spouse’s elective share |
| Petitioner | The person (executor or eligible relative) who formally brings the probate or administration case |
| Heir-at-Law | A person who would inherit under intestacy law; used interchangeably with “distributee” in most contexts |
| Codicil | A formal amendment to an existing will |
| Voluntary Administration | A simplified court process for small estates that avoids full probate |
| Right of Election | A surviving spouse’s statutory right to claim a minimum share of the estate, regardless of the will |
| Fiduciary | The general legal term covering both executors and administrators |
| Ancillary Probate | A secondary probate proceeding in another state, needed when a decedent owned property outside New York |
| Kinship Proceeding | A court process to determine and prove family relationships when the rightful heirs aren’t clearly known |
| Public Administrator | A county official appointed to administer an estate when no eligible family member is available or willing to serve |
| Renunciation | A formal, written refusal to serve as executor or administrator, or to accept an inheritance |
| Accounting | The formal record an executor or administrator files showing what came into and went out of the estate |
| Guardian ad Litem | A person appointed by the court to represent the interests of a minor or incapacitated party in a proceeding |
You Don’t Have to Navigate Probate Alone
Every probate case is different, but families in the middle of one deserve the same thing: to feel supported, not overwhelmed. Our probate attorneys have spent years helping families in New York through cases of every kind, from straightforward estates to complicated, contested ones, and have seen firsthand what it takes to move a case toward a smooth resolution. If you need guidance or just have questions about where to start, we’re here to help, and you’re in good hands.