Most New York estates move through Surrogate's Court without anyone filing objections. The executor's attorney files the petition, the court issues letters, the estate is settled, and the beneficiaries sign releases. That is transactional probate work. A smaller number of estates turn adversarial. Someone questions the will, refuses to account, holds property that belongs to the estate, or wants the fiduciary removed. At that point the question is no longer which forms to file. It is who represents whom, who pays, and what the court will require before it rules. This page explains how to tell which situation you are in, and what changes once a matter becomes contested in a New York Surrogate's Court.
For the mechanics of an uncontested case, see our separate pages on the NYC probate timeline, letters testamentary, letters of administration, and avoiding probate in New York. This page does not repeat that material.
The short answer
You need a probate litigator, rather than a transactional probate attorney, when any of the following is true:
- You intend to object to a will, or you are the proponent and someone has demanded examinations under SCPA 1404 or has filed objections under SCPA 1410.
- A fiduciary will not account, or has accounted and you dispute the figures, the fees, or the handling of a specific asset.
- Estate property is in someone else's hands and that person will not return it, which calls for a discovery and turnover proceeding under SCPA 2103 and 2104.
- You want an executor or administrator suspended or removed under SCPA 711 or 719, or you are the fiduciary facing that petition.
- The fiduciary's personal conduct is at issue and the attorney who handled the probate now has a conflict between the estate and the fiduciary as an individual.
If none of these applies, you most likely do not need a litigator, and paying litigation rates for routine administration would be a mistake. If one does apply, the rest of this page covers what to expect.
Why the estate's probate attorney often cannot handle the dispute
The attorney who filed the probate petition represents the executor or administrator in that fiduciary capacity. That attorney does not represent the beneficiaries, even though the beneficiaries are the people who ultimately receive the estate and, in effect, bear the cost of the attorney's fee. Beneficiaries sometimes assume the estate's lawyer is their lawyer. Under the New York Rules of Professional Conduct, the lawyer's client is the fiduciary.
Three situations create a conflict that forces a change in representation:
- A beneficiary wants to object. A beneficiary who plans to contest the will, object to an account, or seek removal needs separate counsel. The estate's attorney cannot advise a beneficiary on how to attack the estate's own position.
- The fiduciary is accused personally. When a petition alleges that the executor took estate funds, sold property to a relative below value, or otherwise breached a duty, the executor's interests as an individual diverge from the interests of the estate. The attorney defending the executor on those charges is defending the individual. The court may refuse to allow that fee to be charged to the estate, and the executor may need to retain and pay that lawyer personally.
- The attorney is a witness. If the probate attorney also drafted the will, that attorney is a required witness at the SCPA 1404 examination and may be a trial witness. An attorney who will testify generally cannot act as trial counsel in the same proceeding.
Executors should ask their attorney directly, in writing, whether the attorney is representing the estate, the executor personally, or both, and whether the fee for contested work will be billed to the estate or to the executor. See also our page on beneficiary and executor conflicts.
The procedural events that turn probate into litigation
SCPA 1404 examinations
Before filing objections, any person entitled to object may examine the attesting witnesses and the person who drafted the will under oath. Where the will contains a no-contest clause, EPTL 3-3.5 allows the nominated executors and the proponents to be examined as well without triggering the clause. The examination is limited by court rule (22 NYCRR 207.27) to the period three years before the date of the will and two years after it, or to the date of death if earlier, unless the court expands it. The 1404 examination is the single most common point at which a family decides to retain a litigator. It is also, in many cases, the point at which the dispute ends, because the testimony either supports the will or exposes a problem that leads to settlement.
Objections to probate under SCPA 1410
Objections may be filed by anyone whose interest in the estate would be adversely affected if the will were admitted, typically a distributee who takes more under intestacy or under a prior will. The recognized grounds in New York are lack of due execution under EPTL 3-2.1, lack of testamentary capacity, undue influence, fraud, duress, and revocation. The proponent carries the burden of proving due execution and capacity. The objectant carries the burden on undue influence and fraud. That allocation matters when you evaluate whether a contest is worth bringing. Issues of fact in a contested probate may be tried to a jury under SCPA 502. Our will contest page covers the grounds in more detail.
Compulsory accountings and objections to accounts
A beneficiary who cannot get information from the fiduciary may petition under SCPA 2205 to compel an accounting. Once an account is filed, interested parties may examine the fiduciary under SCPA 2211 and file objections to specific schedules: assets omitted, expenses that should not have been charged, commissions claimed on assets the fiduciary never handled, or attorney fees that appear excessive. An accounting contest is litigation. It involves document demands, depositions, and a hearing or trial on the objections. See estate accountings for the structure of the account itself.
Discovery and turnover under SCPA 2103 and 2104
When a fiduciary believes a third person holds property of the decedent, such as a bank account retitled shortly before death, cash withdrawn under a power of attorney, or furniture and jewelry removed from the apartment, the fiduciary may petition under SCPA 2103 for an inquiry. If the respondent does not return the property, the matter proceeds to a hearing under SCPA 2104 on title and the court may order turnover. SCPA 2105 provides the reverse remedy, allowing a third person to recover property the fiduciary is holding. These proceedings are adversarial from the first filing. See discovery and turnover proceedings.
Suspension and removal under SCPA 711 and 719
SCPA 711 lists the grounds on which the court may suspend, modify, or revoke letters, including dishonesty, improvidence, wasting or mismanaging estate assets, refusal to obey a court order, and failure to file an account when directed. SCPA 719 allows removal without a prior hearing in narrower circumstances, such as failure to file a bond or a felony conviction. A removal petition puts the fiduciary's personal conduct on trial, which is exactly the situation in which the fiduciary's probate attorney may be conflicted out. See removing an administrator or executor and breach of fiduciary duty.
Who pays the litigation fees
This is the question clients ask first, and the answer depends on which role you occupy.
- The fiduciary defending the will or the estate. Reasonable attorney fees incurred by the executor or administrator in administering the estate, including defending the will in a contest, are ordinarily an administration expense paid from the estate. The court reviews those fees under SCPA 2110 and will reduce fees it finds unreasonable. The court may also decline to allow fees from the estate for work that served the fiduciary personally rather than the estate.
- The fiduciary accused of misconduct. If the court finds that the fiduciary breached a duty, it may surcharge the fiduciary and direct that the cost of the fiduciary's defense be borne personally rather than by the estate. A fiduciary who prevails is in a better position to have defense fees allowed as an estate expense.
- The objectant or petitioning beneficiary. New York follows the general rule that each party pays its own attorney. An objectant's fees are usually paid by the objectant, from the objectant's own funds or from the objectant's eventual share. The court has discretion under SCPA 2301 and 2302 to award costs, and in limited cases to direct that a party's fees be paid from the estate where the litigation produced a benefit for the estate as a whole, for example by recovering assets that every beneficiary shares. That is the exception.
- Costs of the 1404 examination. The court may direct that the expenses of the examination, such as court reporter fees, be paid from the estate. The objectant's own attorney fees for conducting the examination are a separate matter and are generally the objectant's responsibility.
Any beneficiary who believes the estate's attorney fees are excessive may ask the court to fix the fee under SCPA 2110. That request itself is a contested application.
Realistic costs and timelines in a contested matter
Uncontested probate in the New York City counties typically produces letters within three to six months, and the estate may close after the seven-month creditor period and a final accounting. Contested matters run on a different clock.
- Through 1404 examinations. Examinations are usually scheduled within a few months after the demand. Many disputes resolve during or shortly after this stage. Litigation fees at this point are commonly billed hourly and may already exceed the flat or capped fee that would have applied to an uncontested probate.
- Through objections and discovery. Once objections are filed, the proceeding moves into document discovery, medical and financial record subpoenas, and depositions. This phase often takes six months to a year or more, depending on the county's calendar and the number of parties.
- Through trial. A contested probate tried to a verdict, or an accounting contest tried on multiple objections, can take two years or longer from the first filing. Fees for a case that goes through trial in New York City are commonly in the tens of thousands of dollars per side and can reach six figures where the estate is large and the record is heavy.
We do not quote a single number here because the range is wide and depends on the estate's size, the number of parties, and how far the case goes. We discuss the likely cost of each stage in writing before the work begins, and we revisit it at each decision point.
How contested matters usually end
Most contested Surrogate's Court proceedings in New York settle. The reasons are practical. Litigation fees charged to the estate reduce every beneficiary's share, including the share of the party who filed the objections. The Surrogate's Courts in the five boroughs actively hold conferences before a law clerk or referee and may refer the parties to mediation. Common settlement structures include:
- A revised distribution in which the objectant receives a fixed sum or an increased percentage in exchange for withdrawing objections.
- A stipulated accounting that adjusts specific schedules, such as reducing commissions or disallowing a disputed expense, without a hearing.
- An agreed turnover of specific assets with a mutual release.
- Voluntary resignation of the fiduciary in favor of a successor, avoiding a removal hearing and the findings that would accompany it.
A litigator's job includes knowing when the evidence from the 1404 examination or the account justifies pressing forward and when it justifies accepting a settlement. The point at which that assessment is made is usually the most important decision in the case.
Illustrative scenarios
The following are hypothetical fact patterns, not descriptions of actual clients or results. They show where the decision to retain a litigator typically occurs.
Scenario 1: A 2022 will favoring one sibling, Kings County
A parent dies in Brooklyn leaving a 2022 will that gives the house to the child who lived with the parent and divides the remainder among four children. An earlier will divided everything equally. The parent had a dementia diagnosis in 2021. The excluded siblings are served with a citation in the Kings County Surrogate's Court. At this point they can sign a waiver, do nothing, or demand SCPA 1404 examinations of the drafting attorney and the witnesses. Demanding the examinations is the point at which they need a litigator. The examination will focus on who arranged the appointment with the attorney, who was present, and what the attorney observed about capacity. Whether objections follow depends on that testimony.
Scenario 2: An executor who will not account, Queens County
An executor received letters testamentary in Queens three years ago. The beneficiaries have received no distribution and no financial statements. Requests for information go unanswered. The beneficiaries' first step is a petition under SCPA 2205 to compel an accounting. If the executor files an account showing large unexplained cash withdrawals, the beneficiaries file objections and may add a petition under SCPA 711 to suspend the executor. The executor's original probate attorney may now be conflicted, since the executor needs a personal defense.
Scenario 3: A joint account opened six weeks before death, New York County
A decedent in Manhattan added a caretaker to a bank account holding most of the liquid estate six weeks before death. The administrator believes the account was opened for convenience and not as a gift. The administrator, through litigation counsel, commences a discovery proceeding under SCPA 2103 against the caretaker. The caretaker's position is that the account is a joint account with right of survivorship. The dispute turns on evidence of the decedent's intent and the circumstances of the account opening. This is litigation from the day the petition is filed.
Scenario 4: An executor who is also the drafting attorney's client in another matter
An executor retained the attorney who drafted the will to probate it. A beneficiary files objections alleging undue influence. The drafting attorney will be examined under SCPA 1404 and will likely be a trial witness. The executor needs separate litigation counsel to defend the will, with fees subject to court review under SCPA 2110 as an estate expense.
When and how to switch counsel
If you are the fiduciary and your attorney has handled the estate well but has no Surrogate's Court trial experience, the common arrangement is to bring in litigation counsel for the contested proceeding while the original attorney continues with routine administration. If you are a beneficiary who has been dealing with the estate's attorney, you need your own lawyer before you take any adversarial step. In either case:
- Ask for the court file. Every filing in the Surrogate's Court is a public record unless sealed, and a new attorney will need the petition, citations, waivers, and any orders.
- Check the return date on any citation you received. Missing it can waive rights.
- Confirm in the engagement letter which capacity the attorney represents, how fees are billed, and whether fees will be sought from the estate.
- Do not sign a waiver of citation, a receipt and release, or a consent to an account until a lawyer representing you personally has reviewed it.
Related pages on this site
Frequently asked questions
Does demanding a SCPA 1404 examination trigger a no-contest clause?
No. EPTL 3-3.5 provides that examining the attesting witnesses, the drafter, and, where the will contains such a clause, the nominated executors and proponents does not forfeit a gift under a no-contest clause. Filing objections after the examination can.
Can the estate pay my lawyer if I object to the will?
Usually not. An objectant generally pays his or her own attorney. The court has discretion under SCPA 2301 and 2302 to award costs and, in limited cases, fees from the estate where the proceeding benefited the estate as a whole, but an objectant should plan on paying personally.
Who has the burden of proof in a New York will contest?
The proponent must prove due execution under EPTL 3-2.1 and testamentary capacity. The objectant must prove undue influence, fraud, or duress.
Can a beneficiary force an executor to account?
Yes. Any interested person may petition the Surrogate's Court under SCPA 2205 to compel the fiduciary to account. Failure to account when directed is a ground for removal under SCPA 711.
Is there a jury in a will contest?
A party may demand a jury on issues of fact in a contested probate proceeding under SCPA 502. Accounting and removal proceedings are tried to the Surrogate.
Sources
- Surrogate's Court Procedure Act, full text (New York State Senate), including Articles 7, 14, 21, 22, and 23.
- Estates, Powers and Trusts Law, full text (New York State Senate), including EPTL 3-2.1 and 3-3.5.
- New York City Surrogate's Courts (nycourts.gov), with locations and filing information for New York, Kings, Queens, Bronx, and Richmond Counties.
About the author
This page was written and is maintained by Albert Goodwin, Esq., an attorney admitted to practice in New York whose practice is concentrated in Surrogate's Court proceedings, including contested probate, accounting objections, turnover proceedings, and fiduciary removal, in the New York City counties and surrounding areas. Statutory references on this page are to the SCPA and EPTL as currently in effect and are reviewed when those statutes or the Uniform Rules for the Surrogate's Court change. Nothing on this page is legal advice for a specific matter.
Talk to us about your situation
If you have received a citation, a demand for 1404 examinations, a petition to compel an accounting, or a removal petition, or if you are a beneficiary who cannot get answers from an executor, we can review the file and tell you whether the matter calls for a litigator. The Law Offices of Albert Goodwin has offices in Manhattan, Brooklyn, and Queens. Call 212-233-1233 or email [email protected].
