Most inheritance disputes in New York are decided in the Surrogate's Court of the county where the person who died (the decedent) lived. Each kind of dispute has its own procedure, its own statute and its own deadline. Filing the wrong proceeding, or filing late, can cost you a claim that would otherwise have been strong.
This page is an overview. It explains which Surrogate's Court proceeding fits which problem, what the governing New York statute says, and how much time you have. Each section links to a page that covers that proceeding in more detail.
Find your situation: proceeding, statute and deadline
| Your situation | Proceeding | Main statute | Key timing |
|---|---|---|---|
| A will cuts you out or leaves you less than you expected | Objections to probate | SCPA 1410; SCPA 1404; EPTL 3-2.1 | Objections are generally due on the return date of the citation, or within 10 days after SCPA 1404 examinations are completed. Once a will is admitted to probate, undoing the decree is much harder. |
| A surviving spouse is left less than the statutory share | Right of election | EPTL 5-1.1-A | Within 6 months after letters are issued, and never later than 2 years after the date of death |
| An executor or administrator is wasting or misusing estate assets | Petition to suspend, modify or revoke letters | SCPA 711; SCPA 719 | File as soon as you have evidence. Delay lets losses grow. |
| Someone obtained letters by lying about who the heirs are | Revocation of letters for false suggestion of a material fact | SCPA 711(4); SCPA 1001 | Act promptly. Ask for interim relief if assets are at risk. |
| Money or property was taken before or after death | Discovery and turnover proceeding | SCPA 2103 | Brought by the estate fiduciary. Civil limitations periods apply to the underlying claim. |
| An agent under a power of attorney drained accounts | Proceeding to compel the agent to account | General Obligations Law 5-1510 | Can be brought by the estate's personal representative after death |
| The fiduciary will not tell you what the estate holds or spends | Compulsory accounting | SCPA 2205 | Courts generally expect the fiduciary to have had time to gather assets, often after the 7-month creditor period |
| Distribution is being delayed without reason | Petition to compel payment of a legacy or distributive share | EPTL 11-1.5; SCPA 2102 | Available after 7 months from the issuance of letters |
| A relative is living in, or refuses to sell, an inherited house | Partition, ejectment or a Surrogate's Court application | RPAPL Article 9; SCPA 2103 and 2107 | Depends on how title passed and whether the estate is still open |
The table simplifies statutes that have exceptions. Use it to find the right starting point, then read the section below and speak with counsel about your facts.
Will contests: grounds, standing and what happens if you win
In New York, a will contest is made by filing objections in the probate proceeding under SCPA 1410. You do not start a separate lawsuit. When an executor petitions for probate, the court issues citations to the decedent's distributees, meaning the people who would inherit if there were no will. A citation gives you a return date, and that date matters.
Who has standing
Under SCPA 1410, any person whose interest would be adversely affected by admitting the will to probate may object. In practice, that usually means one of two groups:
- Distributees: heirs at law under EPTL 4-1.1, such as a spouse or children, who would take more under intestacy than under the will.
- Beneficiaries of an earlier will: people who would receive more under a prior will than under the one offered for probate.
Grounds for objection
- Lack of due execution: EPTL 3-2.1 requires the will to be signed at the end, signed or acknowledged in front of at least two attesting witnesses, declared by the testator to be a will, and signed by the witnesses within a 30-day period.
- Lack of testamentary capacity: the testator must have understood the nature and extent of the property, the natural objects of their bounty, and what the will provided.
- Undue influence: pressure that replaced the testator's wishes with someone else's. Caregivers and family members who controlled access to the testator are common subjects of these claims.
- Fraud: false statements that caused the testator to sign a will they otherwise would not have signed.
- Forgery: the signature is not the testator's.
- Revocation: the will was revoked by a later will or by a physical act described in EPTL 3-4.1.
Capacity and due execution are the most commonly raised grounds. The proponent of the will bears the burden on those two issues. The objectant generally bears the burden on undue influence and fraud. When an attorney supervised the signing, courts presume the will was properly executed, and that presumption is hard to overcome.
SCPA 1404 examinations and in terrorem clauses
Before objections are due, you can demand pre-objection examinations under SCPA 1404 of the attesting witnesses and the drafting attorney. You can also examine the nominated executors and the proponents. Many wills contain an in terrorem, or no-contest, clause that forfeits a gift if the beneficiary contests. EPTL 3-3.5 enforces those clauses but protects certain conduct, including SCPA 1404 examinations and contests alleging forgery or revocation by a later will that are brought with probable cause. If you would lose a gift under the will by objecting, you need to weigh that risk before you file.
What happens if the will is denied probate
Defeating a will does not automatically mean the estate passes by intestacy. If an earlier valid will exists, that will may be offered for probate instead, and it may treat you better or worse. Intestacy under EPTL 4-1.1 applies only if no valid will remains. For a fuller discussion of objections and trial practice, see our page on contesting a will in New York. If you have not seen the will yet, read whether beneficiaries are entitled to a copy of the will. For gifts to non-family caregivers, see when an inheritance is left to a caretaker.
The surviving spouse's right of election
A surviving spouse who is left less than the statutory share does not need to contest the will. Under EPTL 5-1.1-A, the spouse may elect to take the greater of $50,000 or one-third of the net estate. The election is made by serving written notice on the personal representative and filing it with the Surrogate's Court. It must be made within 6 months after letters testamentary or letters of administration are issued, and in no event later than 2 years after the date of death. The court can extend the 6-month period for reasonable cause, but only if the extension is requested before the period runs out.
Testamentary substitutes
The one-third is measured against the net estate plus testamentary substitutes, which are assets that passed outside the will. Under EPTL 5-1.1-A(b), they include:
- Totten trust accounts and payable-on-death accounts
- Jointly held bank accounts and property held with right of survivorship, to the extent of the decedent's contribution
- Property in a revocable trust, or transfers where the decedent kept the income or a power to revoke
- Retirement plan benefits, subject to rules in the statute
- Gifts causa mortis, meaning gifts made in contemplation of imminent death
- Gifts made within one year of death, but only to the extent they exceed the federal annual gift tax exclusion under Internal Revenue Code section 2503(b)
A spouse can lose the right of election in two main ways. One is a written waiver that is signed and acknowledged, usually in a prenuptial or postnuptial agreement. The other is disqualification under EPTL 5-1.2, which covers abandonment, failure to support, and a divorce or separation judgment. Calculating the share often requires subpoenas for account records, so start early. Elective share disputes frequently overlap with conflicts between beneficiaries and the executor.
Removing or suspending an executor or administrator
SCPA 711 lists the grounds for suspending, modifying or revoking letters. They include wasting or improperly applying estate assets, failing to obey a court order, dishonesty or improvidence that makes the fiduciary unfit, and obtaining letters by a false suggestion of a material fact. SCPA 719 lets the court act summarily, without a full hearing, in specific situations such as a fiduciary's failure to obey certain orders or to account when directed.
Surrogates treat removal as a serious step because the decedent chose the executor. Disagreements over timing, or personal hostility between siblings, usually are not enough by themselves. Courts look for concrete evidence, such as unexplained withdrawals, commingling estate money with personal funds, self-dealing in the sale of estate real property, or refusal to provide any information. If assets are at immediate risk, the court can suspend the fiduciary while the petition is pending and appoint a temporary administrator. See our page on executor and administrator removal in New York.
When letters were obtained by misstating the heirs
We regularly see petitions for letters of administration in which a sibling or parent of the decedent states that the decedent left no children. Under SCPA 1001 and EPTL 4-1.1, a surviving spouse and children take priority over siblings and parents, both for appointment and for inheritance. If letters were issued on a false statement of who the distributees are, a child can petition under SCPA 711(4) to revoke them. The child can also ask the court to restrain the administrator from acting and petition to be appointed instead. Proof of the relationship, such as birth certificates, is usually central, and paternity can become an issue under EPTL 4-1.2.
Recovering assets taken before or after death
Some of the hardest disputes involve money that disappeared before anyone was appointed. Common patterns include a family member using the decedent's debit card after death, an agent under a power of attorney writing checks to themselves, and accounts retitled in the final months of life.
SCPA 2103 discovery and turnover
Once an executor or administrator is appointed, that fiduciary can bring a proceeding under SCPA 2103 to find and recover estate property. The proceeding has two stages. First, the fiduciary can examine the person believed to hold the property, under oath, and obtain records. If the evidence supports it, the court then decides who owns the property and can order it returned to the estate. If the fiduciary is the person who took the assets, or refuses to pursue them, beneficiaries usually need to seek removal or the appointment of a different fiduciary first. Our page on discovery and turnover proceedings in NYC covers the procedure.
Power of attorney abuse
An agent's authority under a power of attorney ends at death. Withdrawals after death are not authorized. Before death, General Obligations Law 5-1505 requires the agent to act in the principal's best interest and keep records. Under GOL 5-1510, the estate's personal representative can bring a proceeding to compel the agent to account for every transaction. Gifts the agent made to themselves are scrutinized closely, especially if the power of attorney did not authorize gifting. See what you can do about a power of attorney being abused.
Lifetime transfers procured by fraud or undue influence
Transfers the decedent signed while alive, such as a deed or a change of account beneficiary, can be set aside if they were procured by fraud, duress, undue influence or lack of capacity. These claims often belong to the estate and are brought by the fiduciary.
Breach of fiduciary duty and compelled accountings
Executors, administrators and trustees owe beneficiaries duties of loyalty and care. Self-dealing, unreasonable delay, failure to insure or maintain real property, and selling assets below value can all support a surcharge, which is an order that the fiduciary personally repay the loss. A fiduciary found to have breached their duties may also have commissions under SCPA 2307 reduced or denied. Our pages on fiduciary duty claims in New York and on what counts as a breach of fiduciary duty explain the standards. For trusts, see breach of trust and beneficiaries' rights to trust information.
The usual way to expose a breach is an accounting. Under SCPA 2205, an interested person can petition to compel the fiduciary to file a formal account. Beneficiaries then file objections to specific items, and the court decides them. See estate accounting proceedings.
Limitations periods
As a general rule, claims for equitable relief against a fiduciary are subject to a 6-year period under CPLR 213(1). Claims seeking only money damages can be subject to a 3-year period under CPLR 214. Fraud claims are governed by CPLR 213(8), which allows 6 years from the fraud or 2 years from discovery, whichever is later. Against an executor or trustee, the period usually does not begin until the fiduciary openly repudiates their role or the account is judicially settled. These rules have exceptions, so do not rely on a general rule to calculate your own deadline.
Disputes over an inherited house
Real estate causes a large share of family conflict. One heir lives in the house and pays nothing. Another wants to sell, and a third wants to keep it. While the estate is open, the fiduciary has authority over the property and can seek court orders to obtain possession and sell. After title passes to heirs as co-owners, a co-owner can bring a partition action under RPAPL Article 9 or negotiate a buyout. See a beneficiary living in the inherited house, a sibling who refuses to leave a parent's house, partition of real property and buyouts of inherited residences.
How a contested matter moves through Surrogate's Court
- Assessment: we review the will, any earlier wills, letters issued, account statements and deeds, and identify the right proceeding and deadline.
- Filing: a petition or objections are filed in the correct county, and interested parties are served with citations.
- Discovery: document demands, subpoenas to banks and medical providers, and depositions. In will contests, discovery generally covers a period of 3 years before the will was signed and 2 years after, though the court can expand that window.
- Interim relief: where needed, applications to freeze accounts, suspend a fiduciary or appoint a temporary administrator.
- Settlement or mediation: many contested estates settle. Some Surrogate's Courts offer mediation programs.
- Motions and trial: summary judgment motions are common in will contests. Remaining issues are tried, sometimes to a jury in probate contests.
Contested matters commonly take one to several years. Timing depends on the court's calendar, how much discovery is needed and whether the parties are willing to settle. For uncontested matters, see our sample NYC probate timeline.
Surrogate's Courts in New York City
- New York County (Manhattan): 31 Chambers Street
- Kings County (Brooklyn): 2 Johnson Street
- Queens County: 88-11 Sutphin Boulevard, Jamaica
- Bronx County: 851 Grand Concourse
- Richmond County (Staten Island): 18 Richmond Terrace
We also handle matters in the Surrogate's Courts of Nassau, Suffolk and Westchester counties. Venue is generally the county where the decedent was domiciled at death.
Legal fees and costs
New York generally follows the rule that each side pays its own lawyer. Depending on the matter, inheritance disputes may be handled hourly, on a contingency fee, or on a hybrid arrangement. Contingency arrangements are more common when the goal is recovering a specific sum, such as assets taken by a sibling. Under SCPA 2110, the Surrogate's Court has authority to review and fix attorney fees charged to an estate. An executor who defends a will in good faith may have defense costs paid from the estate. A fiduciary found to have acted improperly can be ordered to bear costs personally. Court filing fees and deposition transcript costs are separate from legal fees. We discuss fee structure in writing before any engagement.
Frequently asked questions
How long do I have to contest a will in New York?
There is no single statute of limitations. Objections must be filed in the probate proceeding, usually by the return date on the citation or within 10 days after SCPA 1404 examinations conclude, unless the court extends the time. If you were properly served and did not object, the will can be admitted, and reopening a probate decree is difficult. Contact a lawyer as soon as you receive a citation.
Can I sue my sibling for taking our parent's money before she died?
Often, yes. If the sibling acted under a power of attorney, the estate can compel an accounting under GOL 5-1510. If money was taken without authority, the fiduciary can pursue it through an SCPA 2103 turnover proceeding or a civil claim. If your sibling is the executor, you may need to seek their removal so someone independent can pursue the claim.
What if the will leaves everything to one child?
Parents in New York can disinherit adult children. Unequal treatment alone is not grounds to overturn a will. You need a legal ground, such as lack of capacity, undue influence, improper execution, fraud, forgery or revocation, and standing under SCPA 1410.
Does a surviving spouse have to sue to receive the elective share?
No. The spouse serves and files a notice of election within the EPTL 5-1.1-A deadline. Litigation arises only if the amount of the share, or the spouse's eligibility, is disputed.
Can an executor be removed just because the beneficiaries don't get along with them?
Usually not. Courts require grounds under SCPA 711, such as misconduct, waste or unfitness. Hostility that actually interferes with administering the estate can, in some cases, support a removal or a limitation of powers.
Do you handle these matters in Spanish?
Information is available in Spanish on our page for an abogado de herencia de Nueva York.
Speak with a New York inheritance dispute lawyer
The Law Offices of Albert Goodwin represents beneficiaries, heirs, surviving spouses and fiduciaries in Surrogate's Court disputes across New York City and the surrounding counties. We have offices in Manhattan, Brooklyn and Queens. Call 212-233-1233 or email [email protected] to discuss your matter. Learn more about Albert Goodwin.
This page provides general information about New York law and is not legal advice. Reading it does not create an attorney-client relationship. Statutes and court rules change, so confirm deadlines for your specific situation with counsel.
