More New York City Probate FAQ

Here are some of the questions that we are most frequently asked:

How long should probate take?

It is best to wait at least 7 months before closing the proceeding because that is the cutoff point for creditors to make claims against the estate. This is the shortest time it can take, but just as any lawsuit, it can take years if there is a disagreement among interested parties. See the sample probate timeline for more information.

What is the deadline to finish up probate?

Probate should be finished up within a reasonable timeframe. However, what is reasonable can vary depending on the complexity of the case. Disagreements between the parties will prolong the probate process.

What is the deadline to file a Will or probate a Will?

Although there is no deadline to file or probate a will in New York, it should be done as soon as possible. If the will is not filed within a reasonable time period and a party or a creditor will be disadvantaged as a result, the court will penalize the will holders and credit the disadvantaged party or creditor.

I think my relative is hiding the Will. What can I do?

In a probate proceeding, you can force a person to produce the will.

Does the estate have to pay executors’ fees?

The executor is entitled to a fee, called a “commission.” It is based on the value of the estate, according to the following schedule:

5% of the first $100,000
4% of the next $200,000
3% of the next $700,000
2 ½% of the next $4,000,000
2% above $5,000,000

However, if the executor also benefits under the will, it might be a good idea to waive the commissions, to save on income taxes.

What happens if a person mentioned in the will is no longer living?

Most wills specify what would happen in this event. If the will is silent on the topic, the children of the person mentioned in the will get the share, but only that person’s children are the testator’s grandchildren or nephews/nieces.

My father divorced his first wife but did not get a chance to change the Will. Will she inherit?

The gift to the former spouse is not valid. However, if the spouse’s children are in the Will, they do get the gift.

I was adopted after a will was executed, and was not mentioned in the Will. Will I inherit?

Yes. The adopted child’s share comes out of the other sibling’s share (this only works if the child was adopted after the will was executed).

Call the Law Offices of Albert Goodwin at (212) 233-1233 and make an appointment to discuss your estate administration or probate proceeding.

Who Has Priority to Serve as Executor or Administrator?

When there is a will, the will names the executor. New York courts typically respect that nomination unless the named executor is disqualified (felony conviction, lack of capacity, dishonesty, substance abuse) under SCPA § 707. When the named executor cannot serve, the will may name a successor, or the court appoints an administrator c.t.a. (with will annexed) following the same priority used for intestate administration.

When there is no will, SCPA § 1001 sets the priority for who can serve as administrator: the surviving spouse first, then children, then grandchildren, then parents, then siblings, then more distant relatives. If multiple people in the same priority class want to serve, the court can appoint one, more than one (co-administrators), or sometimes a neutral public administrator if the family cannot agree.

How Are the Decedent's Debts Handled?

The executor or administrator must pay valid debts of the estate before distribution to beneficiaries. The process involves identifying creditors, notifying them of the death, evaluating each claim for validity, paying claims that are valid, and rejecting claims that are not. Creditors have seven months from the issuance of letters to file claims with the estate. Claims filed after that period can be rejected on timeliness grounds, though the executor sometimes pays late claims if they are clearly valid.

If the estate's assets are insufficient to pay all valid claims (an "insolvent estate"), New York law sets the priority order for payment: administration expenses first, then funeral expenses, then taxes, then debts secured by liens on estate property, then judgments, then other debts in equal priority. Beneficiaries receive nothing in an insolvent estate; all the assets go to creditors in priority order.

What Are the Tax Filings the Executor Must Handle?

Multiple tax filings are typically required:

• Decedent's final personal income tax returns. Federal Form 1040 and New York IT-201 covering the period from January 1 of the year of death to the date of death.
• Estate income tax returns. Federal Form 1041 and New York IT-205 covering income earned by the estate during administration.
• Federal estate tax return. Form 706, required if the gross estate exceeds the federal exemption (currently around $13.61 million per individual, though the exemption is scheduled to drop substantially after 2025 absent legislation).
• New York estate tax return. ET-706, required if the gross estate exceeds the New York exemption (currently around $6.94 million but rising slightly each year for inflation).
• Gift tax returns. Form 709 if the decedent had gift tax obligations that were not addressed during life.

Tax filings have specific deadlines. The federal estate tax return is generally due nine months after death, with extensions available. The New York return follows similar timing.

What Happens to Real Estate in Probate?

Real estate held individually by the decedent is part of the probate estate. The executor must address it through one of several paths:

• Sale. The executor markets and sells the property and the proceeds go into the estate. Court approval may be needed if the will does not authorize the sale or if the personal representative is an administrator without a power of sale.
• Distribution in kind. The property is deeded to the beneficiaries in their respective shares. Co-tenancy issues arise if multiple beneficiaries receive the same property.
• Specific bequest. If the will leaves the property to a specific beneficiary, the executor deeds it to that beneficiary subject to any debts the will directs to be paid from estate funds.

Real estate held jointly with right of survivorship or held by tenancy by the entirety passes outside probate to the surviving co-tenant. Real estate in a trust passes under the trust terms, not probate.

What If a Beneficiary Is a Minor?

Distributions to minors cannot be made directly to the minor. New York law requires one of several alternatives:

• Distribution to a guardian of the property. A court-appointed guardian holds the funds until the minor reaches 18.
• UTMA custodianship. Distribution to a custodian under the Uniform Transfers to Minors Act, with the custodian holding the funds until the minor reaches 21.
• Distribution to a testamentary trust. If the will creates a trust for the minor, the trustee receives the funds and administers them under the trust terms.
• Court deposit. If no other arrangement exists, the executor may deposit the funds with the court, which holds them until the minor's majority.

The executor should not make distributions directly to a minor. Doing so creates personal liability if the funds are mishandled before the minor reaches majority.

What If a Beneficiary Predeceased the Decedent?

The answer depends on the will's language and the relationship between the deceased beneficiary and the decedent. New York's anti-lapse statute (EPTL § 3-3.3) prevents the bequest from lapsing if the deceased beneficiary was the decedent's issue (descendant) or sibling. In those cases, the bequest passes to the deceased beneficiary's issue per stirpes.

If the deceased beneficiary was not within the protected class (a friend, more distant relative, charity), the bequest lapses and falls into the residue. The will's specific language can override the default rule by, for example, expressly directing what happens if a beneficiary predeceases.

What Are the Most Common Probate Mistakes?

The mistakes that most commonly cause problems in NYC probates:

• Distributing to beneficiaries before paying creditors (creating personal liability).
• Failing to file required tax returns or pay required taxes timely.
• Making informal distributions without obtaining receipts and releases.
• Mismanaging estate investments or letting assets decline in value.
• Self-dealing or otherwise allowing conflicts of interest to taint transactions.
• Keeping inadequate records of receipts and disbursements.
• Failing to file the inventory or other required reports.
• Acting without authority before letters are issued.
• Ignoring deadlines for creditor claims, tax filings, and other formalities.

Most of these are avoidable with competent counsel and routine attention to the administration. The cost of estate counsel is minor compared to the personal exposure from going it alone.