How Long Does Estate Litigation Take in New York? Timelines for Will Contests, Accountings, Kinship and Removal Proceedings

Contested estate matters in New York move more slowly than most clients expect. A will contest that goes through formal objections and discovery usually takes 18 months to 3 years from the probate petition to the decree. An accounting proceeding with objections usually takes 1 to 2 years. A kinship proceeding can run 3 years or more, partly because the statute itself builds in a waiting period. The ranges on this page come from our firm's estate litigation practice in the Surrogate's Courts of the five boroughs, Nassau, Suffolk and Westchester. They are estimates. They vary by county, by judge and by how hard the other side fights.

This page covers contested proceedings only. If no one is objecting and you want to know how long it takes to get letters and close a straightforward estate, see our sample NYC probate timeline, which walks through an uncontested probate from filing to final distribution.

Timelines by type of proceeding

The table gives the range we see most often for each kind of contested matter. The period measured is from the first filing that starts the dispute to the decree that ends it. Appeals are listed separately because they start a new clock.

How a contested proceeding moves through Surrogate's Court

Surrogate's Court has its own procedure, set out in the Surrogate's Court Procedure Act (SCPA) and the Uniform Rules for Surrogate's Court at 22 NYCRR Part 207. Where those are silent, the CPLR applies (SCPA 102). The stages below are the ones that control the calendar.

Petition, citation and return date

Every proceeding starts with a petition. The court then issues a citation, which is the Surrogate's Court equivalent of a summons. The citation names a return date, the day the matter first appears on the court's calendar. Under SCPA 307, a citation served by personal delivery within New York must be served at least 10 days before the return date. Service outside the state, by mail or by publication requires more lead time. Getting the citation issued and served on every interested party, including people who live abroad or whose whereabouts are unknown, often takes 1 to 3 months by itself. The court will not proceed until jurisdiction is complete over everyone entitled to notice.

If a party is a minor, is under a disability, or is unknown, the court appoints a guardian ad litem under SCPA 403. The guardian's investigation and report add time to any proceeding.

Pre-objection examinations in a will contest

In a probate proceeding, a person with standing does not have to file objections blind. SCPA 1404 allows the examination, before objections, of the attesting witnesses and the attorney who drafted the will. If the will contains an in terrorem (no-contest) clause, the nominated executor and the proponent can also be examined without triggering the clause (SCPA 1404(4); EPTL 3-3.5). Under 22 NYCRR 207.27, the examination is limited to the three years before the will was signed and the two years after it, or the date of death, whichever is shorter, unless the court extends the period for cause.

Objections must then be filed within 10 days after the examinations are completed, unless the court sets a different date. Missing that window can end the contest. In practice, scheduling the 1404 examinations, obtaining the drafting attorney's file and transcribing the testimony takes 2 to 5 months from the return date.

Pre-objection examination in an accounting

The accounting proceeding has a parallel device. SCPA 2211 lets an interested party examine the accounting fiduciary under oath about the account before deciding what to object to. Objections are then filed under SCPA 2210. Because the fiduciary's bank statements, brokerage records and vouchers have to be produced first, this stage commonly takes 3 to 6 months.

Discovery

Once objections are on file, discovery proceeds under CPLR Article 31. In a will contest, the heavy items are the decedent's medical and hospital records, financial records, and depositions of family members, caregivers and the drafting attorney. Expert review of medical records for capacity and undue influence questions follows. A discovery schedule is usually set at a conference with the court attorney. Six to twelve months of discovery is ordinary in a contested probate; disputes over privilege, HIPAA authorizations or non-party subpoenas push it longer.

Motion practice

After discovery, the proponent of a will often moves for summary judgment under CPLR 3212 to dismiss the objections. Courts grant these motions with some regularity in cases where the attesting witnesses' testimony is consistent and the objectant has no evidence of incapacity or influence beyond suspicion. Briefing and decision on a summary judgment motion usually takes 3 to 6 months. Even where no one opposes, SCPA 1408 requires the court to satisfy itself that the will is genuine and validly executed before admitting it.

Note of issue, trial or hearing

If issues remain, a party files a note of issue under the Uniform Rules and the matter is placed on the trial calendar. Will contests can be tried to a jury on demand (SCPA 502). Accountings, kinship hearings and turnover proceedings are usually tried to the Surrogate or referred to a court attorney-referee under SCPA 506 to hear and report. The wait for a trial date depends heavily on the county. A kinship hearing before a referee can often be reached within a few months; a jury trial of a will contest in a busy county can wait a year.

Decree

The proceeding ends with a decree: a decree admitting or denying probate, a decree judicially settling the account, a decree determining distributees, or a decree revoking letters. A Surrogate's Court decree is enforceable in the same way as a judgment of the Supreme Court, including by contempt where a fiduciary disobeys a direction to pay or deliver property.

Appeal

Appeals from Surrogate's Court go to the Appellate Division (SCPA 2701). Matters from New York County and the Bronx go to the First Department. Matters from Kings, Queens, Richmond, Nassau, Suffolk and Westchester go to the Second Department. The notice of appeal must be served and filed within 30 days after service of the decree with notice of entry (CPLR 5513). The appellant then has six months from the notice of appeal to perfect by filing the record and brief (22 NYCRR 1250.9), after which the respondent answers and the court schedules the matter. Decisions typically arrive 12 to 24 months after the notice of appeal. Note that an appeal does not automatically stay the decree; a stay must be obtained under CPLR 5519 or by order.

A will contest, month by month

The sequence below is an illustration built from the stages that recur in our contested probate matters. It is not a description of any single case and says nothing about outcome; it shows where the months go.

• Month 0: The nominated executor files the probate petition. The court issues a citation to the distributees who would take if the will failed. The petitioner applies for preliminary letters testamentary under SCPA 1412 so the estate can be administered during the contest.
• Months 1 to 2: Citation is served. One distributee lives outside the United States, which requires additional lead time under SCPA 307 and may require an extended return date.
• Month 2: Return date. A disinherited child appears by counsel and requests SCPA 1404 examinations.
• Months 3 to 6: The drafting attorney's file is produced. The two attesting witnesses and the drafting attorney are examined. Transcripts are received.
• Month 6: Objections are filed within 10 days of the last examination, alleging lack of testamentary capacity and undue influence.
• Months 7 to 16: Discovery. HIPAA authorizations are exchanged; records are collected from three hospitals, a nursing facility and the decedent's internist. Family members and a home health aide are deposed. Each side retains a physician to review the records.
• Month 17: Note of issue is filed. The proponent moves for summary judgment on the capacity objection.
• Months 18 to 22: Motion is briefed and decided. In this illustration, the capacity objection is dismissed and the undue influence objection survives.
• Months 23 to 26: Settlement conference with the court attorney. If the parties settle, a stipulation is submitted and the decree follows within weeks. If they do not, the matter waits for a trial date.
• Months 27 to 34: Trial and decision, followed by the decree.

An accounting objection, month by month

• Month 0: A beneficiary who has received no accounting after two years petitions to compel one under SCPA 2206.
• Months 1 to 4: Citation is served and returnable; the court orders the executor to file an account within a set number of days. The account is filed, usually with an extension.
• Months 5 to 9: The beneficiary examines the executor under SCPA 2211 and reviews bank records and vouchers behind the schedules.
• Month 9: Objections under SCPA 2210 are filed to specific items: unsupported disbursements, a below-market sale of real property, and the executor's commissions.
• Months 10 to 16: Discovery on the objected items, including an appraisal of the property as of the sale date.
• Months 17 to 20: Hearing before a court attorney-referee, report, and decree judicially settling the account with surcharges or disallowances as the court directs.

Why the county matters

Each county has its own Surrogate's Court with its own Surrogate or Surrogates, court attorneys and referees. New York County and Kings County each have two Surrogates; Queens, Bronx, Richmond, Nassau, Suffolk and Westchester each have one. The volume of estates filed, the number of referees available for hearings and the court's conference practice all affect how quickly a contested matter reaches a decision. The same will contest can finish several months apart depending on the county where the decedent was domiciled, because that is where the proceeding must be brought (SCPA 205). The Office of Court Administration publishes annual caseload reports for the Surrogate's Courts; they are a useful check on how busy a particular court is in a given year. Ask your attorney what the current wait for conferences and hearings is in the specific county, because it changes.

What adds time

• Many parties: each adds service, discovery and scheduling. Parties outside the United States require letters rogatory or consular service for depositions.
• Unknown or missing distributees: service by publication and a guardian ad litem under SCPA 403 become necessary.
• Medical records: elderly decedents often have a dozen providers, and records requests to closed practices or out-of-state facilities can take months.
• Experts: capacity, handwriting, valuation and forensic accounting experts each add retention time, reports and depositions.
• Discovery motions: motions to compel and for protective orders routinely add 2 to 4 months each.
• Death of a party: the proceeding stops until a representative is appointed for that party's estate and substituted in.
• Parallel proceedings: a related Supreme Court action, a guardianship under Mental Hygiene Law Article 81 that preceded death, or a federal estate tax audit can hold up the Surrogate's Court decree.

What saves time

• Early realistic assessment: after the 1404 or 2211 examinations, the strength of the case is usually clear. Cases that settle at that point finish a year or two sooner than cases that settle on the courthouse steps.
• Narrow objections: objecting to three items in an account moves faster than objecting to every schedule.
• Summary judgment: where the record supports it, a CPLR 3212 motion avoids the trial calendar entirely.
• Bench trial or referee: waiving a jury in a will contest, or consenting to a hearing before a referee, usually shortens the wait for a trial date.
• Court-supervised settlement conferences: most Surrogate's Courts will schedule one on request once discovery is substantially complete.

The estate does not freeze while the case is pending

A pending contest does not stop bills, taxes or property maintenance. Several provisions let the estate function in the meantime. Preliminary letters testamentary under SCPA 1412 allow the nominated executor to collect assets, pay expenses and sell property during a will contest, usually with a restriction on distributions. Where no will is offered or the nominated executor is the subject of the dispute, the court can appoint a temporary administrator under SCPA 901. A beneficiary who needs funds can petition for an advance payment of a legacy or distributive share under SCPA 2102(5) if the estate is clearly solvent. Fiduciary income tax returns and any estate tax returns remain due on their regular schedules regardless of the litigation.

Two practical points shorten cases more than any procedural device: answer your attorney's document and information requests promptly, and read pleadings before they are filed. Delays on the client side are the ones the court will not excuse.

Questions we hear often

How long does a will contest take in New York?

If the matter ends after SCPA 1404 examinations without objections, 6 to 9 months. If objections are filed and the case goes through discovery, 18 months to 3 years. A jury trial or an appeal extends that further.

How long does the SCPA 1404 examination phase take?

Usually 2 to 5 months from the return date of the citation. The time goes to obtaining the drafting attorney's file, scheduling the witnesses and receiving transcripts. Objections are due within 10 days after the last examination unless the court sets another date.

How long does a Surrogate's Court accounting take when there are objections?

Expect 1 to 2 years from the filing of the account to the decree. Add 3 to 6 months if the fiduciary first has to be compelled to account under SCPA 2205 and 2206.

Can estate litigation be expedited in Surrogate's Court?

There is no general expedited track, but interim relief is available quickly. The court can suspend a fiduciary's letters under SCPA 711 or revoke them under SCPA 719 on an order to show cause, grant preliminary or temporary letters so the estate can be administered, and direct an advance payment to a beneficiary under SCPA 2102(5). Narrowing the issues, waiving a jury and moving for summary judgment all shorten the time to a final decree.

How long does an appeal from Surrogate's Court take?

Thirty days to file the notice of appeal after service of the decree with notice of entry (CPLR 5513), up to six months to perfect (22 NYCRR 1250.9), then the court's calendar. Twelve to 24 months from notice of appeal to decision is typical in both the First and Second Departments.

Is there a deadline to start a will contest?

The contest happens inside the probate proceeding. You must appear on the return date of the citation or obtain an adjournment, request 1404 examinations if you want them, and file objections within the time the court allows. After a decree admits the will, the only route is a motion to vacate the decree or an appeal, both of which are harder and shorter-fused.

Related proceedings

• Will contests in New York
• Estate and trust accountings
• Discovery and turnover proceedings under SCPA 2103
• Kinship and affidavits of heirship
• Removing an executor or administrator
• Breach of fiduciary duty claims
• Appealing a Surrogate's Court decree
• Uncontested probate timeline

About the author

Albert Goodwin, Esq. is a New York estate litigation attorney. He represents executors, administrators, trustees, beneficiaries and heirs in contested proceedings in the Surrogate's Courts of New York City, Long Island and Westchester, including will contests, accountings, turnover proceedings, kinship hearings and removal proceedings. The timelines on this page reflect that practice and are reviewed periodically against current court conditions. Last reviewed: [insert month and year].

If you are a fiduciary defending a proceeding or a beneficiary bringing one and want an estimate for your county and your facts, call us at 212-233-1233 or email [email protected].