Notice of Probate in New York: What SCPA § 1409 Requires and What to Do If You Receive One

By Albert Goodwin, Esq., New York estates and probate attorney, Law Offices of Albert Goodwin

A Notice of Probate is a written notice, required by Surrogate's Court Procedure Act (SCPA) § 1409, that tells certain people named in a will that the will has been filed for probate in a New York Surrogate's Court. It goes to beneficiaries, trustees, guardians, and substitute or successor executors who are not otherwise brought into the case by a citation or a signed waiver. The notice is informational. It does not summon you to court, and it does not by itself make you a party to the proceeding.

This page covers the notice itself: who receives one, who receives a citation instead, how the notice is prepared and served, and what you can do after you get one. For the full sequence of a New York probate case, see our sample NYC probate timeline.

Notice of Probate vs. Citation: Who Gets Which

New York separates the people connected to a will into two groups. People whose rights could be cut off by the will must receive formal process (a citation) or sign a waiver and consent. People who are named in the will but are not in that group receive a Notice of Probate.

The reason is practical. A distributee (a person who would inherit if there were no will) loses something if the will is admitted, so the law gives that person a formal chance to object. A beneficiary who takes under the will being offered usually benefits from its admission, so the law only requires that the beneficiary be told the will is in court.

Some people fall into both groups. A child of the decedent who is also a beneficiary is a distributee, so that child receives a citation or signs a waiver. No separate notice is needed. A notice is only for people who would otherwise get no word of the filing.

The named executor is normally the person who files the petition, which is why executors are not listed as notice recipients. A co-executor who does not join the petition usually either signs a renunciation or is brought in through the petition process. Substitute and successor executors are different. They are not acting yet, so they receive a Notice of Probate to learn that they are named and may be called on later.

Charitable gifts and the Attorney General

The New York Attorney General represents the public interest in charitable gifts (EPTL 8-1.1). If a will leaves property to charity, the Attorney General generally must be informed of the probate proceeding, and the notice form includes a place for the Attorney General's name and address. If the charitable beneficiaries are not identified, or if a charity's interest would be reduced by the will being offered, the Attorney General is treated as a necessary party and is served with a citation instead.

What the Notice Must Contain

Under SCPA § 1409, the Notice of Probate must state:

• the name of the testator (the person who made the will);
• the name and address of the proponent, meaning the person who filed the probate petition;
• that the will has been offered for probate, and in which Surrogate's Court;
• the names and addresses of the people named in the petition who have not been served with process, have not appeared, and have not waived service; and
• the Attorney General's name and address where the will contains a charitable disposition that requires it.

The Unified Court System publishes an official Notice of Probate form, with an attached affidavit of mailing, on its Surrogate's Court forms page under the probate forms. Most attorneys use that form or a version that tracks it word for word. Each county Surrogate's Court accepts the same statewide form.

How and When the Notice Is Served

Who serves it

The petitioner, or the petitioner's attorney, is responsible for mailing the notice. The court does not send it.

Timing

The notice must be mailed before the will is admitted to probate, with enough lead time to meet the minimum period in § 1409. In practice it is generally mailed at least ten days before the court admits the will, and often when the petition is filed. The court will not sign the probate decree until proof of mailing is in the file.

Proof of mailing

Whoever mails the notice signs an affidavit or affirmation of mailing. It lists each person the notice was sent to, the address used, and the date of mailing. The affidavit and a copy of the notice are filed with the Surrogate's Court. If proof is missing or a recipient has been left off, the court clerk will usually raise it before the will is admitted, and the decree will wait until the problem is corrected.

Unknown or foreign addresses

The notice goes to each person at the address listed in the petition. If a beneficiary's address cannot be found after a reasonable search, the petition should say so, and the court can decide how to proceed. Notices to beneficiaries outside the United States are mailed the same way, to the foreign address shown in the petition. If a beneficiary has died, is a minor, or lacks capacity, the petition must disclose that, and the court may require service on a representative or appoint a guardian ad litem.

Is a copy of the will included?

The notice form does not contain the will. Some petitioners enclose a copy, and many do not. If you did not receive one, you can get it from the court file, as explained below, or ask the petitioner's attorney named on the notice.

What to Do If You Received a Notice of Probate

You are not required to respond to a Notice of Probate, and nothing happens to you if you do nothing. The following steps still make sense if you want to protect your interest under the will.

1. Identify the court and the file number

The notice names the Surrogate's Court, which is in the county where the decedent lived. In New York City those courts are the New York County (Manhattan) Surrogate's Court at 31 Chambers Street, Kings County (Brooklyn) at 2 Johnson Street, Queens County at 88-11 Sutphin Boulevard in Jamaica, Bronx County at 851 Grand Concourse, and Richmond County (Staten Island) at 18 Richmond Terrace. You can search for the case by the decedent's name using the court system's WebSurrogate lookup, which gives the file number and the docket entries.

2. Get a copy of the will and the petition

Once a will is filed for probate it is a public court record. You can view or order copies from the court's record room, and in counties where the case is filed through NYSCEF you may be able to view documents online. The probate petition is worth reading alongside the will. It lists the distributees, the beneficiaries, and an estimate of the estate's assets. More detail is on our page about whether beneficiaries are entitled to a copy of the will.

3. Work out what the will gives you

Read the clause that names you. A gift may be outright, in trust, conditional, or contingent on someone else dying first. If you are named as a trustee, guardian, or successor executor, the notice is telling you that a role may come to you later. It does not appoint you to anything now.

4. Understand your limited ability to object

Under SCPA § 1410, a person whose interest would be adversely affected by admission of the will may file objections. Most notice recipients benefit from the will, so they have no reason or standing to object. If you believe the will being offered is not the decedent's last will, or that you would take more under an earlier will or in intestacy, speak with a lawyer quickly. Objections must be raised before the will is admitted, and a beneficiary who contests may risk losing a gift under a no-contest clause (EPTL 3-3.5). See our will contest page.

5. Watch for the issuance of letters testamentary

After the court admits the will, it issues letters testamentary to the executor. Letters give the executor authority to collect assets, pay debts, and later distribute the estate. Our page on letters testamentary explains that step. If the named executor cannot or will not serve, the court may appoint an administrator c.t.a. instead.

6. Know when you can ask the court for help

Under EPTL 11-1.5, an executor is not required to pay legacies until seven months after letters are issued. After that, and in some situations earlier, a beneficiary has court remedies:

• SCPA § 2102: a proceeding to compel the executor to provide information about the estate or to pay a legacy that is due.
• SCPA § 2205: a proceeding to compel the executor to file a formal accounting.
• SCPA § 711 and § 719: proceedings to suspend or remove an executor who mismanages the estate.

See our pages on estate accountings, resolving beneficiary and executor conflicts, and breach of fiduciary duty.

An Illustrative Scenario

The following is a hypothetical, not a description of any client matter.

A woman dies in Queens. Her will names her son as executor, her sister as successor executor, and leaves $25,000 to a longtime friend, with the rest to the son and daughter equally. The son files the probate petition. The daughter is a distributee, so she signs a waiver and consent. The sister and the friend are not distributees, so each receives a Notice of Probate by mail, and the son's attorney files an affidavit of mailing.

The friend does not need to do anything to keep the $25,000 gift. She can look up the file on WebSurrogate, order a copy of the will, and keep the notice for her records. If the gift has not been paid well after seven months from the date letters issue, she can ask the executor's attorney for a status update and, if needed, petition under SCPA § 2102. The sister learns that she would step in if the son dies, resigns, or is removed. Neither of them has to appear in court.

Frequently Asked Questions

Do I have to respond to a Notice of Probate in New York?

No. A notice does not require an appearance or a reply. A citation is different. It sets a return date, and a person who does not appear by that date is treated as consenting to probate.

Does a Notice of Probate mean I will inherit?

It means you are named in the will that has been filed. Whether you receive anything depends on whether the will is admitted, what the clause naming you says, and whether the estate has enough assets after debts, taxes, and expenses to pay your gift.

What is the difference between a Notice of Probate and a citation in New York?

A citation under SCPA § 1403 is formal process. It brings a person into the case as a party and gives that person a chance to object before a set date. A Notice of Probate under SCPA § 1409 only informs a person that the will has been filed. Distributees and others whose rights could be cut off receive citations. Other people named in the will receive notices.

I am a child of the decedent. Why did I get a citation and not a notice?

Children are distributees. Because they would inherit if there were no will, the law requires that they be cited or sign a waiver, even if the will also leaves them property.

How long after the notice will the estate be distributed?

Probate itself can take weeks or many months depending on the county and on whether anyone objects. Distribution comes after letters are issued and the executor has collected assets and paid debts. Our probate timeline page walks through typical stages.

Sources

• SCPA § 1409, Notice of probate
• SCPA § 1403, Process in probate
• SCPA § 1410, Objections to probate
• New York State Unified Court System, Surrogate's Court forms

Talk to a New York Probate Attorney

If you are an executor preparing a Notice of Probate, or a beneficiary trying to understand one you received, we can help. Call the Law Offices of Albert Goodwin at 212-233-1233 or email [email protected].

We represent executors, administrators, and beneficiaries in Surrogate's Court proceedings throughout New York State, including all five boroughs of New York City (Manhattan, Brooklyn, Queens, the Bronx, and Staten Island), Long Island, and Upstate New York.

This page is general information about New York law and is not legal advice for any specific situation.