This page is for one kind of reader: the person who believes a parent, spouse, sibling or other relative died in New York and left them something, and who is not getting it. Perhaps no one has told you whether there is a will. Perhaps an executor was appointed months ago and has gone silent. Perhaps a relative emptied an account before the funeral. The Law Offices of Albert Goodwin represent beneficiaries and heirs in these situations in the Surrogate's Courts of Manhattan, Brooklyn, Queens, the Bronx, Staten Island and the surrounding counties. Below is the sequence we use to find out what you are owed and to collect it, with the statutes that give you each right.
Two New York statutes do most of the work. The Estates, Powers and Trusts Law (EPTL) says who inherits and how much. The Surrogate's Court Procedure Act (SCPA) says how you force the people holding the estate to tell you, to account to you, and to pay you. Citations below are to those two statutes unless noted.
Step 1: Find Out Whether There Is a Will
You cannot know what you are owed until you know whether the decedent died with a will (testate) or without one (intestate). Nobody is obligated to send you a copy of a will before it is filed with the court, so you may have to look for it yourself.
- Search the Surrogate's Court file: A will must be filed in the Surrogate's Court of the county where the decedent lived. Once a probate petition is filed, the will becomes part of a public court record. Several New York City counties post index information online, and the clerk's record room in each county will search by the decedent's name. If a file exists, you can read the will and see who the executor and beneficiaries are.
- Check for a will deposited for safekeeping: Under SCPA 2507, a person may deposit a will with the Surrogate's Court during life. The court holds it sealed until death. Ask the clerk in the county of domicile whether a will was deposited.
- Ask the drafting attorney: Many New York wills are kept in the drafting lawyer's vault. If you know who prepared the decedent's documents, a written request often produces an answer. The lawyer may not be free to hand you a copy, but will usually confirm whether a will exists and whether it has been sent to the court.
- Search the safe deposit box: If you believe a will is in a bank safe deposit box that no one can open, SCPA 2003 lets an interested person petition for an order directing the bank to open the box in the presence of a court or bank officer, remove any will found, and deliver it to the court.
- Compel the person holding it to produce it: If a relative or other custodian admits having the original will and refuses to file it, SCPA 1401 authorizes a proceeding to compel production. The court orders the custodian to appear and deliver the instrument, and can hold a non-complying custodian in contempt.
If after these steps there is no will, the estate passes by intestacy under EPTL 4-1.1, and the people entitled to serve and to inherit are the decedent's distributees. Our page on administering an estate without a will covers the appointment process in detail; this page stays with your rights as the person owed money.
Step 2: Confirm Your Standing
Your rights in Surrogate's Court depend on which category you fall into. Most people owed an inheritance are in one of four.
- Named beneficiary under the will: You are a legatee (personal property or money) or devisee (real property). Your right is to what the will gives you, after debts, expenses and taxes are paid. You are entitled to notice of probate under SCPA 1409 and to an accounting before the estate closes.
- Distributee: You would inherit under EPTL 4-1.1 if there were no will. A surviving spouse and children are distributees. If there are none, parents, then siblings and their descendants, then grandparents and their descendants are next in line. Distributees are the people the court must cite in a probate proceeding (SCPA 1403), because they lose something if the will is admitted. A distributee has standing to object to the will.
- Beneficiary under an earlier will: If you were left a larger share in a prior will that is on file with the court, and a later instrument cuts you out or reduces you, you must be cited in the probate of the later instrument under SCPA 1403 and may object to it.
- Beneficiary of a non-probate asset: Joint accounts with right of survivorship, Totten trust (in-trust-for) accounts, life insurance, retirement plans and transfer-on-death designations pass outside the will directly to the person named. You claim these from the institution with a death certificate, not from the executor. If the institution will not pay because someone else disputes the designation, that is a different fight, usually in Supreme Court or in a turnover proceeding.
Three problems often arise in confirming distributee status, and each has a statutory answer. A child born outside marriage inherits from the father if paternity was established during the father's life by an order of filiation, an acknowledgment of paternity, or clear and convincing evidence such as DNA testing or the father's open acknowledgment (EPTL 4-1.2). Half-siblings inherit the same as whole-blood siblings (EPTL 4-1.1(b)). A child adopted out of the family generally does not inherit from the birth parents (Domestic Relations Law 117), with narrow exceptions for adoptions by a stepparent or relative. When heirs are cousins or more remote relatives, the court requires proof of the family tree in a kinship proceeding, and SCPA 2225 lets the court conclude that no other heirs exist after a diligent search and the passage of three years from death.
Step 3: Make Sure You Receive Notice, and Use It
Surrogate's Court is built on process. The petitioner who opens an estate must either obtain your signed waiver and consent or serve you with a citation that names a return date. In a probate proceeding, distributees and adversely affected prior-will beneficiaries are cited under SCPA 1403; legatees who are not distributees receive a notice of probate under SCPA 1409. In an administration proceeding, distributees with an equal or superior right to serve are cited under SCPA 1003.
Do not sign a waiver and consent because a relative tells you it is a formality. By signing, you give up your right to be heard on the admission of the will and the appointment of the fiduciary. Courts vacate waivers only on a showing of fraud, misrepresentation or similar grounds, and that is a hard motion to win. If you have any doubt about the will or about the person seeking appointment, decline to sign and wait for the citation.
When the citation arrives, read the return date. On that date you or your lawyer appear, or file a written appearance, and the court will set a schedule. In a probate matter, you may demand examinations under SCPA 1404 of the attesting witnesses and the attorney who drafted the will before you decide whether to object. These examinations are at the estate's expense and are the most efficient way to learn how the will was signed and who was in the room. Objections must then be filed within the time the court sets. If you do nothing by the return date, the court proceeds without you, and the will is admitted. Grounds for objecting and the litigation that follows are covered on our will contest page.
Step 4: Nobody Has Opened the Estate
A common problem is inaction. The named executor does not file. The family argues about who should serve. Months pass and the apartment sits, the accounts go dormant. New York law does not force an executor to act, but it gives you ways around a passive one.
- Petition yourself: Any person interested in the estate may petition for probate under SCPA 1401. If the named executor refuses to serve or cannot be found, the court can issue letters to an alternate or, under SCPA 1418, letters of administration with the will annexed to a beneficiary. In an intestate estate, any distributee may petition for letters of administration under SCPA 1001.
- Ask the Public Administrator to step in: Each New York City county has a Public Administrator who takes over estates when no eligible relative will serve. The Public Administrator charges statutory commissions and counsel fees, so this is a fallback, not a first choice.
- Use the small estate procedure: If the decedent's personal property (not counting real estate) is worth $50,000 or less, SCPA Article 13 allows a simplified voluntary administration. The filing fee is low and letters typically issue quickly.
- Check for unclaimed funds: Accounts dormant for several years are turned over to the New York State Comptroller's Office of Unclaimed Funds. A search of the decedent's name is free, and a fiduciary with letters can claim what is found.
Step 5: The Estate Is Open but the Executor Will Not Pay or Explain
Once letters issue, the executor or administrator owes you duties enforceable by petition. The main ones are below.
- Information (SCPA 2102(1)): You may petition to compel the fiduciary to supply information about the assets and affairs of the estate relevant to your interest. If you have asked in writing and received no answer, this is the first petition we file. It is inexpensive and the court usually orders a response within a set number of days.
- Payment of your share (EPTL 11-1.5 and SCPA 2102(4)): A fiduciary is not required to pay legacies or distributive shares until seven months after letters, because creditors have that long to present claims. After seven months, you may petition to compel payment. If the fiduciary has no good reason to withhold, the court orders payment, and the statute provides for interest on an unpaid legacy from the seven-month mark.
- A compulsory accounting (SCPA 2205 and 2206): Any person interested in the estate may petition for an order directing the fiduciary to file a judicial account. The account must list, in the schedules the court prescribes, every asset collected, every dollar received and spent, and the proposed distribution. Once filed, you may examine the fiduciary under oath about it (SCPA 2211) and file objections to any item. If the court sustains an objection, it surcharges the fiduciary personally for the loss. The mechanics of reviewing and objecting to an account are on our estate accounting page.
- Removal (SCPA 711 and 719): If the fiduciary has mixed estate funds with personal funds, refuses court orders, or is otherwise unfit, you may petition for removal and the appointment of a successor. The court may also suspend letters immediately where estate property is at risk.
A beneficiary who is also in conflict with the executor over a house, a business or a family loan should read our page on beneficiary and executor conflicts. The proceedings above are the enforcement tools; that page covers the negotiation that usually runs alongside them.
Step 6: Someone Took Assets Before or After Death
If a relative withdrew money from the decedent's accounts under a power of attorney, added their own name to an account in the last months of life, or simply removed property from the apartment, those assets may belong to the estate. The remedy is a discovery and turnover proceeding under SCPA 2103 and 2104. The fiduciary petitions, the court orders the respondent to appear and be examined under oath about the property, and if the respondent cannot prove a valid gift or ownership, the court orders the property returned. Where the executor is the person who took the assets, a beneficiary can petition under SCPA 702 for limited letters authorizing someone else to bring the turnover proceeding. We explain the procedure and the defenses on our discovery and turnover page.
Timing matters more here than anywhere else in inheritance work. Bank records are retained for limited periods, witnesses move, and the person holding the money spends it. If you suspect assets were taken, the first step is often a request for a SCPA 2103 examination rather than a demand letter, because the examination puts the respondent under oath before they have time to shape a story.
Which Path Applies to You
Use this guide to locate your situation. Each branch ends in the proceeding that gives you a remedy.
- No one knows whether there is a will: Search the court file and SCPA 2507 safekeeping records; ask the drafting attorney; petition under SCPA 2003 for the safe deposit box; petition under SCPA 1401 to compel production.
- There is a will and you are named in it:
- Executor has filed and is cooperating: wait for the seven-month mark, then request an informal account and a receipt and release before signing anything.
- Executor has filed and gone silent: SCPA 2102(1) petition for information, then SCPA 2205 compulsory accounting, then SCPA 2102(4) petition for payment.
- No one has filed: petition for probate yourself under SCPA 1401 or for letters of administration c.t.a. under SCPA 1418.
- There is a will and you are not named, but you are a distributee or a prior-will beneficiary: You must be cited under SCPA 1403. Do not sign the waiver. Demand SCPA 1404 examinations. File objections if the facts support them.
- There is no will and you are a distributee:
- Someone else has letters: the same SCPA 2102, 2205 and 2206 remedies apply to administrators.
- No one has letters: petition under SCPA 1001, or Article 13 if the estate is small.
- Your relationship is disputed or remote: kinship proceeding, with DNA evidence where EPTL 4-1.2 requires it.
- Assets left the estate improperly: SCPA 2103 and 2104 turnover, brought by the fiduciary or by a beneficiary with limited letters under SCPA 702.
Deadlines That Can End Your Claim
| Right | Deadline | Source |
|---|---|---|
| Object to probate of a will | By the return date of the citation, or within the time the court sets after SCPA 1404 examinations. After the probate decree, reopening requires a motion to vacate, which courts grant sparingly. | SCPA 1410; CPLR 5015 |
| Surviving spouse's right of election | Six months after letters issue, and in no event more than two years after death. The court may extend the time on a showing of reasonable cause if the estate has not been distributed. | EPTL 5-1.1-A(d) |
| Compel payment of a legacy | Not before seven months after letters. | EPTL 11-1.5 |
| Compel an accounting or recover for breach of fiduciary duty | Six years where the relief sought is equitable, such as an accounting; three years where only money damages are sought. The clock generally does not start while the fiduciary still holds the position and has not openly repudiated the duty. | CPLR 213(1); CPLR 214(4) |
| Recover property obtained by fraud | Six years from the fraud, or two years from when it was or should have been discovered, whichever is later. | CPLR 213(8) |
| Recover converted property from a third party | Three years from the taking. | CPLR 214(3) |
| Claim a share deposited with the Commissioner of Finance for an unknown heir | No fixed bar in the Surrogate's Court, but funds are eventually transferred to the State Comptroller, and proof becomes harder each year. | SCPA 2222, 2223 |
These are general rules. A single fact, such as whether the fiduciary ever filed an informal account that you accepted, can change which period applies. Treat every deadline as earlier than it looks.
Surrogate's Court Filing Fees
Court fees in New York are set by SCPA 2402 and are modest compared with the amounts usually at stake. The fee for a probate or administration petition is scaled to the gross value of the estate:
| Gross estate value | Filing fee |
|---|---|
| Less than $10,000 | $45 |
| $10,000 to less than $20,000 | $75 |
| $20,000 to less than $50,000 | $215 |
| $50,000 to less than $100,000 | $280 |
| $100,000 to less than $250,000 | $420 |
| $250,000 to less than $500,000 | $625 |
| $500,000 or more | $1,250 |
Other proceedings carry fixed fees under the same statute. Filing objections to probate is $150. Certified copies of letters, which banks and brokers require, are $6 each. Petitions to compel an accounting, for turnover, or for other relief against a fiduciary have their own fixed fees listed in SCPA 2402, and the clerk in each county will confirm the current amount. The Legislature changes these figures from time to time, so verify before filing.
How Legal Fees Work When You Are the Beneficiary
An executor's reasonable legal fees are paid from the estate under SCPA 2110. A beneficiary who hires a lawyer to enforce their rights generally pays that lawyer directly, although the court can direct that fees be paid from the estate where the beneficiary's work benefited the estate as a whole, and can charge fees against a fiduciary who is surcharged. At the first consultation we review which of three structures fits the matter.
- Flat fee: Suited to defined tasks with a predictable scope, such as a SCPA 2102 petition for information, a petition to compel an accounting, or a kinship affidavit package.
- Hourly: Suited to contested matters where the other side's conduct controls the amount of work, such as will contests and objections to an accounting.
- Contingency or hybrid: Considered case by case for turnover and recovery matters where the assets and the respondent's ability to pay can be identified. We will tell you plainly whether a matter is a candidate for this structure.
Three Situations We See Often
These are composites that illustrate how the steps above fit together. They are not descriptions of particular clients or results.
The silent executor
A daughter in Queens is named in her mother's will as a one-third beneficiary. Her brother is executor. Letters issued fourteen months ago. He has sold the house and will not say where the proceeds are. The path: a written demand for information, then a SCPA 2102(1) petition when the demand is ignored, then a SCPA 2205 petition for a compulsory accounting. Once the account is filed, the sale documents and bank statements come with it, and any unexplained withdrawals become objections under SCPA 2211 that can lead to a surcharge.
The cousin who is not sure she is an heir
A man dies in Brooklyn with no spouse, children, parents or siblings and no will. A first cousin learns of the death from a neighbor. She does not know whether other cousins exist. The path: a search of the Kings County Surrogate's Court file to see whether anyone has petitioned; if not, a petition for letters of administration under SCPA 1001 with a kinship affidavit, or a request that the Public Administrator proceed with the cousin appearing as a claimant; a kinship hearing with birth, marriage and death records proving the family tree; and, if more than three years have passed, a SCPA 2225 determination that no closer heirs exist.
The account that changed hands before death
A father in the Bronx had $300,000 in a savings account. In his last year, his son held his power of attorney. After death, the account is in the son's name alone. The other children are the distributees. The path: letters of administration to one of the other children, or limited letters under SCPA 702 if the son has already been appointed; a SCPA 2103 petition to examine the son under oath about the transfer; subpoenas to the bank for the signature cards and transaction history; and a SCPA 2104 turnover demand if the son cannot show a valid gift. A power of attorney does not by itself authorize the agent to make gifts to himself, and the burden of proving a gift falls on the person claiming it.
About the Law Offices of Albert Goodwin
Albert Goodwin is admitted to practice in New York and concentrates on probate, estate administration and estate litigation in the Surrogate's Courts of New York City and the surrounding counties. The firm regularly represents beneficiaries and distributees in the proceedings described on this page, including petitions to compel information and accountings, objections to probate and to accounts, kinship proceedings, and discovery and turnover matters. We also represent executors and administrators, which gives us a working knowledge of how the other side of these cases is defended. You can read more about Albert Goodwin here. Offices are in Manhattan, Brooklyn and Queens.
Frequently Asked Questions
How do I find out if I was left out of a will?
If the will has been filed for probate, it is in the public court file in the county where the decedent lived, and you can read it. If you are a distributee, you must be cited in the probate proceeding under SCPA 1403, so you will learn of the will by citation even if you are not in it. If the will has not been filed and the person holding it will not show it to you, SCPA 1401 allows a proceeding to compel its production. Our page on whether beneficiaries are entitled to a copy of the will covers the related question of what the executor must send you after probate.
Can an executor refuse to tell me what is in the estate?
Not for long. Before letters issue, there is no legal duty to report to you. After letters issue, you may petition under SCPA 2102(1) to compel the fiduciary to supply information about estate assets relevant to your interest, and under SCPA 2205 to compel a full judicial accounting. A fiduciary who ignores a court order to account risks removal under SCPA 711 and personal liability.
The executor says the estate has no money for me. How do I check?
Ask for a written informal account showing assets collected, debts and expenses paid, and the remaining balance. If the executor refuses or the numbers do not match what you know of the decedent's finances, petition for a compulsory accounting. The formal account must be sworn to and supported by documents, and you may examine the executor under oath about every entry under SCPA 2211.
I was named on my mother's bank account as beneficiary. Does that go through the estate?
Usually no. A Totten trust or payable-on-death account passes directly to the named beneficiary on presentation of a death certificate. The executor has no claim to it, with two exceptions: a surviving spouse's elective share can reach it as a testamentary substitute under EPTL 5-1.1-A, and the estate can challenge the designation if it was procured by undue influence or made while the decedent lacked capacity.
I am a non-marital child. Can I inherit from my father who died without a will?
Yes, if paternity is established under EPTL 4-1.2. The statute accepts an order of filiation or acknowledgment of paternity made during the father's life, or clear and convincing evidence of paternity, which can include DNA testing of the father's remains or of close relatives, together with evidence that he openly acknowledged you as his child.
Letters were issued a year ago and I have received nothing. Is that normal?
Seven months is the statutory waiting period for creditor claims, and many estates take nine to eighteen months to distribute. A year with no distribution and no explanation is not unusual, but it is a point at which you are entitled to answers. Send a written request for an informal account, and if there is no response within a few weeks, file under SCPA 2102. For a sense of the ordinary pace, see our sample New York City probate timeline.
What does it cost to force an executor to account?
The court filing fee for the petition is fixed by SCPA 2402 and is small. Legal fees depend on whether the executor complies after the order or forces a contested accounting with objections and a hearing. A straightforward petition to compel an account is typically a flat-fee matter; objections and a hearing are typically hourly. If the account reveals misconduct and the court surcharges the fiduciary, it may also direct that your fees be paid from the fiduciary's share or commissions.
Contact
If you believe you are owed an inheritance in New York and are not receiving it, we can review the court file, identify where you stand, and tell you which proceeding fits. Call 212-233-1233 or email [email protected]. Bring whatever you have: the death certificate, any correspondence from the executor or the court, and the names of the relatives you know about.
