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Probate is the court-supervised process of proving a deceased person’s will, appointing a fiduciary, and authorizing that person to collect the assets, pay the debts and distribute the estate. In New York it is handled by the Surrogate’s Court of the county where the decedent was domiciled at death. This page explains how the process actually works, what it costs, how long it takes, and when you do and do not need it, with links to deeper guides on each subtopic. The Law Offices of Albert Goodwin handles probate in Manhattan, Brooklyn, Queens and the surrounding counties.
Probate, Administration or Small Estate?
The path through Surrogate’s Court depends on whether the decedent left a valid will and on the size of the estate.
| Situation | Proceeding | Governing law |
|---|---|---|
| There is a will | Probate. The named executor petitions to admit the will and receive Letters Testamentary. | SCPA Article 14 |
| No will (intestacy) | Administration. A close relative petitions for Letters of Administration, and the estate passes under the intestacy statute, which fixes the order of inheritance among the surviving spouse, children, parents and other relatives. | SCPA Article 10; EPTL § 4-1.1 |
| Personal property of $50,000 or less (excluding real property that passes outside the estate) | Voluntary administration, a simplified and lower-cost alternative to full probate. | SCPA Article 13 |
If a named executor cannot or will not serve, or the will names no qualified executor, the court may appoint an administrator c.t.a. (cum testamento annexo) to administer the estate under the terms of the will.
The New York Probate Process, Step by Step
- 1
Locate the original will and the death certificate
Surrogate’s Court generally requires the original signed will, not a copy. A lost-will proceeding under SCPA § 1407 is possible but far more difficult.
- 2
Determine the proper county
The petition is filed in the Surrogate’s Court of the county of the decedent’s domicile: New York County for Manhattan, Kings County for Brooklyn, Queens County for Queens.
- 3
File the probate petition
The executor files the Petition for Probate, the original will, the death certificate and supporting affidavits, and pays the filing fee.
- 4
Identify and serve the distributees
Everyone who would inherit if there were no will, the decedent’s intestate distributees under EPTL § 4-1.1, must be served with a citation or sign a waiver and consent. This is the most common source of delay, especially when heirs are unknown, hard to locate or abroad.
- 5
Admit the will and issue letters
If no one objects and the will appears properly executed under EPTL § 3-2.1, the court admits it and issues Letters Testamentary. Where speed is essential, the court may issue preliminary letters under SCPA § 1412, or limited letters for a specific purpose such as starting a lawsuit.
- 6
Marshal assets and pay debts
The fiduciary opens an estate bank account, transfers assets into the estate’s name, pays valid creditor claims and taxes, and keeps records.
- 7
Account and distribute
The fiduciary prepares an accounting of all receipts and disbursements, distributes the remaining assets to the beneficiaries, and closes the estate.
For how these stages line up on a calendar, see our sample NYC probate timeline.
What Probate Costs and How Long It Takes
Costs come in two parts. Surrogate’s Court filing fees are set by SCPA § 2402 and scale with the size of the estate, from $45 for estates under $10,000 up to $1,250 for estates of $500,000 or more, with additional fees for certified copies of letters and other certificates. Attorney fees are not fixed by statute. They may be hourly, a flat fee for an uncontested probate, or, less commonly, a percentage. Whatever the arrangement, fees paid from the estate must be reasonable, and the court can review and fix them under SCPA § 2110. An uncontested probate costs far less than one involving a will contest or a discovery and turnover proceeding.
On timing, an uncontested probate in which all distributees sign waivers and consents can often get the executor appointed within roughly three to six months. The full administration, paying debts, filing taxes, distributing and accounting, usually takes nine months to over a year; the nine-month figure matters because creditors and the estate tax both key off that period. Contested matters, whether objections to the will, fights over who serves as fiduciary, or hidden assets, can run for years.
Common Complications
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Will contests
A distributee may object on grounds of lack of due execution, lack of testamentary capacity, undue influence, fraud or duress. Before filing objections, parties may conduct SCPA § 1404 examinations of the attorney-drafter and the attesting witnesses. Our will contest page covers the proceeding.
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Missing or hidden assets
When a third party holds or has transferred away estate property, often through joint or “convenience” bank accounts, the fiduciary can bring a discovery and turnover proceeding under SCPA §§ 2103 and 2104 to examine the holder and compel the return of the property. See our guide to the discovery and turnover proceeding.
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Out-of-state or non-citizen fiduciaries
SCPA § 707 limits who may serve. A nondomiciliary alien generally cannot serve alone and must serve with a New York co-fiduciary, which is one reason an attorney sometimes serves as administrator c.t.a.
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Accounting disputes
Beneficiaries are entitled to a proper accounting of what the fiduciary did with the estate’s money. Informal accountings that do not meet the court’s format invite objections; our accounting attorneys page explains how these are handled.
When Probate Is Not Required
Not every asset goes through Surrogate’s Court. Property held in a revocable living trust, accounts with a named beneficiary (life insurance, retirement accounts, payable-on-death and Totten trust accounts), and real estate or bank accounts held as joint tenants with right of survivorship or, for spouses, as tenants by the entirety all pass by operation of law or contract and bypass probate. If most assets pass this way and only a small amount remains, the estate may qualify for voluntary administration under SCPA Article 13. For strategies that keep assets out of court altogether, read how to avoid probate in New York.
Frequently Asked Questions
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Do I need probate if there is a will?
In most cases, yes. A will does not transfer assets by itself; it must be admitted to probate so the court can issue Letters Testamentary authorizing the executor to act. The exceptions are assets that pass outside the will (trust property, beneficiary-designated accounts and jointly held property) and very small estates that qualify for voluntary administration under SCPA Article 13.
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How long does probate take in New York?
An uncontested probate where all interested parties consent can result in the appointment of an executor in roughly three to six months, with full administration commonly taking nine months to over a year. Contested matters take significantly longer.
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How much does a probate lawyer cost in New York?
Fees vary with complexity and may be hourly or a flat fee for uncontested matters. Court filing fees are separate and set by SCPA § 2402 based on estate size. Attorney fees paid from an estate must be reasonable and are subject to court review under SCPA § 2110.
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What if there is no will?
A close relative petitions for Letters of Administration under SCPA Article 10, and the estate is distributed under New York’s intestacy law, EPTL § 4-1.1.
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Who can serve as executor or administrator?
SCPA § 707 governs eligibility. Felons, infants, incompetents and certain non-domiciliary aliens may be disqualified or may need to serve alongside a qualified New York co-fiduciary.
Where We Practice
We handle probate throughout the New York City Surrogate’s Courts and the surrounding region. If your matter is in Kings County, our Brooklyn probate attorney page covers that court specifically. We also handle related matters such as removal of a fiduciary and breach of fiduciary duty claims. Albert Goodwin’s background and admissions are on the About Albert Goodwin page.
If you have been named executor, or a relative has died without a will and something needs to be done, call 212-233-1233 or email [email protected] and we will tell you which proceeding applies and what it will take.
