A New York probate lawyer prepares the petition that asks the Surrogate’s Court to accept a will, locates and serves the relatives who are entitled to notice, answers the court’s deficiency notices, and gets the executor appointed so the estate can be collected and distributed. You need one when a person who lived in New York has died leaving a will, the assets in that person’s sole name are worth more than $50,000, and no one can act for the estate until the court issues Letters Testamentary. The Law Offices of Albert Goodwin files probate petitions in New York, Kings, Queens, Bronx and Richmond Counties. Call 212-233-1233 to find out which proceeding your family needs.
This is the main probate page on this site. It covers the parts of the process that are the same in every county, the parts that differ from court to court, and what the court charges. Each major sub-topic has its own page, linked where it comes up.
When Probate Is the Right Proceeding
Probate is the proceeding for a decedent who left a will. The Surrogate’s Court of the county where the decedent was domiciled at death has jurisdiction (SCPA §§ 205, 206). The nominated executor files a petition under SCPA Article 14 and, if the will is admitted, receives Letters Testamentary.
Three other proceedings get confused with probate, and filing the wrong one costs months:
- Administration: for a decedent who left no will. A distributee petitions under SCPA Article 10 for Letters of Administration, and the estate passes under EPTL § 4-1.1. The page on administration covers who has priority to serve and how to handle relatives who will not consent.
- Voluntary administration (small estate): for estates where personal property in the decedent’s sole name is $50,000 or less (SCPA Article 13). It uses a short affidavit rather than a petition, the filing fee is $1, and it does not cover real property. If the decedent owned a house or co-op in his or her own name, you need full probate or administration regardless of value.
- Ancillary probate: for a decedent domiciled in another state or country who owned New York real property or had New York assets (SCPA Article 16). See ancillary letters in New York.
If the will names an executor who has died, declines, or is disqualified, the court appoints an administrator c.t.a. to carry out the will. If an executor was appointed and later removed or died, the replacement is an administrator d.b.n.
The Five New York City Surrogate’s Courts
Every county uses the same statewide forms and the same statutes, but each court has its own probate department, its own clerks, and its own habits. The practical differences below affect how a petition should be prepared.
| County | Court | What to expect |
|---|---|---|
| New York County (Manhattan) | 31 Chambers Street, New York, NY 10007. Two Surrogates. | Handles the largest share of high-value and contested estates in the state. Petitions are reviewed closely for compliance with the Uniform Rules (22 NYCRR Part 207) before they reach a Surrogate. Preliminary letters under SCPA § 1412 are routinely sought here when an estate holds a co-op, a business or a pending lawsuit that cannot wait. |
| Kings County (Brooklyn) | 2 Johnson Street, Brooklyn, NY 11201. Two Surrogates. | A heavy docket with many estates centered on a single family house. Kinship questions come up often, and the court expects a family tree and affidavit of heirship whenever the distributees are not a spouse or children. Our Brooklyn probate attorney page covers this court in more detail. |
| Queens County | 88-11 Sutphin Boulevard, Jamaica, NY 11435. One Surrogate. | A high proportion of estates with distributees living abroad. Service of the citation outside the United States, translation of foreign documents, and SCPA § 707 limits on non-domiciliary fiduciaries are everyday issues in this court. |
| Bronx County | 851 Grand Concourse, Bronx, NY 10451. One Surrogate. | Smaller docket than Manhattan or Brooklyn. Many matters involve a decedent who held a rent-stabilized apartment or a modest bank account, so the choice between voluntary administration and full probate matters here more than elsewhere. |
| Richmond County (Staten Island) | 18 Richmond Terrace, Staten Island, NY 10301. One Surrogate. | The smallest of the five. Uncontested petitions with complete papers tend to move through review faster than in the larger courts. |
The New York City Surrogate’s Courts participate in the state’s electronic filing system (NYSCEF). The petition and supporting affidavits can be uploaded, but the original will must still be delivered to the court in paper. A will that exists only as a photocopy must be proved under SCPA § 1407, discussed below.
Domicile decides the county. A decedent who kept a Manhattan apartment but spent the last years in a Queens nursing home is usually still a New York County domiciliary if he or she never intended to make Queens a permanent home. When domicile is unclear, we address it in the petition rather than letting the clerk raise it later.
What Goes in a Probate Petition Packet
The court will not act on an incomplete file. The official forms are published by the Office of Court Administration at nycourts.gov/forms/surrogates. A complete uncontested packet in a New York City court contains:
- Petition for Probate (form P-1): identifies the decedent, the will and codicils, the proposed executor, every distributee under EPTL § 4-1.1, every beneficiary named in the will, and the estimated value of the estate. The Uniform Rules (22 NYCRR 207.16) require the petition to disclose whether any distributee is under a disability and how each distributee is related.
- The original will and any codicils.
- A certified death certificate.
- Affidavit of attesting witnesses (SCPA § 1406): usually signed at the time the will was executed and stapled to it. If it is missing, we track down the witnesses and have them sign one now, or arrange their examination under SCPA § 1405.
- Waiver of process and consent to probate from each distributee who agrees to the will. Signed waivers avoid a citation and a court date.
- Probate citation (SCPA § 1403) for every distributee who does not sign a waiver, with a return date set by the clerk and proof of service afterward.
- Notice of probate (SCPA § 1409) mailed to beneficiaries and nominated fiduciaries who are not distributees and so are not cited.
- Family tree and affidavit of heirship when the distributees are collateral relatives, or when any line of the family has died out.
- Attorney certification confirming the petition was reviewed and the will was examined for alterations.
- Proposed decree and proposed Letters Testamentary.
- The filing fee under SCPA § 2402, plus $6 for each certificate of letters.
Where a will was drafted by a lawyer and executed under the lawyer’s supervision, New York courts apply a presumption that the formalities of EPTL § 3-2.1 were followed. Where the will was homemade, or the witnesses cannot be found, expect the court to require more proof before admitting it.
The Process from Filing to Distribution
- Preparation: locate the original will, obtain death certificates, identify the distributees, and collect waivers. For most families this is the longest stage, because the signatures must come from relatives who may be estranged, abroad, or unaware of the death.
- Filing: the packet is filed in the proper county. The probate department reviews it and either accepts it or issues a written deficiency notice listing what is missing. Each notice must be answered before the file moves forward.
- Citation and return date: if any distributee did not sign a waiver, a citation issues. The return date is the first court appearance. A distributee who wants to object may ask for SCPA § 1404 examinations of the attesting witnesses and the drafting attorney before deciding whether to file objections.
- Decree and letters: if no objections are filed and the proof of execution is sufficient, the Surrogate signs a decree admitting the will and the clerk issues Letters Testamentary. Preliminary letters under SCPA § 1412 can be issued earlier when the estate needs a fiduciary before the citation process finishes.
- Administration: the executor obtains a tax identification number, opens an estate account, collects assets, sells or transfers real property, pays debts and taxes, and keeps records of every transaction.
- Accounting and distribution: the executor prepares an accounting, obtains receipts and releases from the beneficiaries or a judicial settlement of the account, and distributes the balance.
A month-by-month version of these stages, with the typical gaps between them in a New York City court, is on our sample NYC probate timeline page.
How Long It Takes
Two statutory periods set the pace of every estate. Under SCPA § 1802, creditors have seven months from the date letters are issued to present claims; an executor who distributes before then can be held personally liable for a valid claim that later surfaces. Under New York Tax Law, the estate tax return (Form ET-706) is due nine months after death for estates above the basic exclusion amount, which is $7,160,000 for deaths in 2025. The federal exemption for 2025 is $13,990,000.
For an uncontested will with signed waivers from every distributee and a complete packet, letters in a New York City court commonly issue within a few months of filing. Adding a citation adds the time needed to serve it and wait for the return date. Full administration through distribution typically runs a year or more because of the seven-month creditor window and the tax filings. A will contest or a dispute over assets can extend an estate by years.
What Probate Costs
Court filing fees (SCPA § 2402)
The fee for a probate or administration petition is fixed by statute and depends on the gross value of the estate stated in the petition:
| Value of estate | 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 and over | $1,250 |
Certificates of letters, which banks and title companies require, cost $6 each. Voluntary administration under Article 13 costs $1.
Executor commissions (SCPA § 2307)
An executor is entitled to statutory commissions on the money and property received and paid out: 5% on the first $100,000, 4% on the next $200,000, 3% on the next $700,000, 2.5% on the next $4,000,000, and 2% above $5,000,000. Commissions are income to the executor and are often waived by a family member who is also the main beneficiary.
Attorney fees
No statute sets attorney fees in a New York estate. For an uncontested probate we quote a flat fee after reviewing the will, the list of distributees, and the assets, so the executor knows the cost before the petition is filed. Contested matters, kinship proceedings and discovery proceedings are billed hourly. Any fee paid out of estate funds is subject to review by the Surrogate under SCPA § 2110, and the court judges reasonableness by the factors in Matter of Freeman, 34 N.Y.2d 1 (1974) and Matter of Potts, 213 A.D. 59 (4th Dep’t 1925): time spent, difficulty of the questions, size of the estate, results obtained, and the lawyer’s experience. We do not charge a percentage of the estate.
Situations We Handle Regularly
These are recurring fact patterns, not reports of particular matters. They show where an ordinary probate turns into something that needs a lawyer who knows the Surrogate’s Court.
A distributee who lives abroad
A decedent in Queens leaves a will favoring one child; a second child lives overseas and will not return a waiver. The second child is a distributee and must be cited. SCPA § 307 governs service outside the state, which requires more lead time before the return date, and service in some countries must comply with the Hague Service Convention. If the foreign child wants to serve as executor, SCPA § 707(1)(c) bars a non-domiciliary alien from serving alone; the court will require a New York co-fiduciary.
The original will cannot be found
The family has a photocopy of a will signed at a lawyer’s office, but the lawyer has retired and the original is gone. When a will was last known to be in the testator’s possession and cannot be found after death, New York law presumes the testator destroyed it with intent to revoke. To overcome that presumption under SCPA § 1407, the petitioner must prove the will was not revoked, prove due execution as in any probate, and prove its contents by a copy shown to be true and complete or by two credible witnesses. If the original was held by the drafting attorney rather than the testator, the presumption of revocation does not apply, which makes the attorney’s file records central to the case.
Money moved before death
Before the funeral, a relative who was on a “convenience” joint account with the decedent empties it. Whether that money belongs to the estate depends on whether the account was a true joint account under Banking Law § 675 or an account opened for the decedent’s convenience only. The executor can bring a discovery and turnover proceeding under SCPA §§ 2103 and 2104 to examine the relative under oath and recover the funds.
An apartment that must be dealt with now
A Manhattan decedent’s co-op maintenance is accruing and the building wants the unit cleared. No one can sell a co-op without letters. Preliminary letters under SCPA § 1412 let the nominated executor secure and list the apartment while the citation process runs. Our page on access to an apartment after death explains what a family can and cannot do before letters issue.
When Probate Is Not Needed
Assets that pass by contract or by operation of law never enter the estate: life insurance and retirement accounts with a named beneficiary, Totten trust and payable-on-death accounts, property held in a revocable trust, and real property or accounts held as joint tenants with right of survivorship or, between spouses, as tenants by the entirety. A decedent whose only sole-name assets are a checking account and a car may need nothing more than voluntary administration. The planning side of this, keeping assets out of court in the first place, is covered on how to avoid probate in New York.
Frequently Asked Questions
Does a will have to be filed with the court if there is no probate?
SCPA § 2507 lets a will be filed with the Surrogate’s Court for safekeeping during the testator’s life. After death, a person holding the original will has an obligation to produce it, and SCPA § 1401 allows the court to compel its production. Even if no probate is needed, the original should not be destroyed.
Can an executor act before letters are issued?
No. Banks, brokerages and title companies require a certificate of letters. An executor who acts before appointment does so at personal risk. Preliminary letters under SCPA § 1412 exist for estates that cannot wait.
Who must receive notice of a probate?
Every distributee under EPTL § 4-1.1 must be cited or sign a waiver (SCPA § 1403), whether or not the will leaves them anything. Beneficiaries under the will and under any earlier will on file receive a notice of probate (SCPA § 1409). If a distributee is a minor or incapacitated, the court appoints a guardian ad litem under SCPA § 403, which adds time and cost.
Can a person with a felony conviction be an executor?
SCPA § 707(1)(d) disqualifies a felon from serving as a fiduciary. See administrator or executor for felons for how the court handles a will that names a disqualified person.
What if the executor is mishandling the estate?
A beneficiary can petition to compel an accounting, to suspend or remove the fiduciary under SCPA § 711, or to surcharge the fiduciary for losses. Our pages on removal of a fiduciary and breach of fiduciary duty explain those proceedings.
Does the executor need a lawyer?
An individual executor may appear without counsel. In practice, the deficiency notices, citation requirements and Uniform Rules make unrepresented petitions slow, and an executor who makes a distribution error is personally liable for it. Reasonable legal fees are paid from the estate, not by the executor personally.
Related Pages
Contact
If you have been named executor, or a relative has died in New York City and no one knows what to file, call 212-233-1233 or email [email protected]. We will tell you which proceeding applies, what the court will charge, and what documents you need to gather before we file.
About the Author
Albert Goodwin is an attorney admitted to practice in New York who represents executors, administrators and beneficiaries in the Surrogate’s Courts of New York, Kings, Queens, Bronx and Richmond Counties. His admissions and background are on the About Albert Goodwin page, and his registration can be confirmed through the New York State attorney registration lookup. This page is reviewed for changes to the SCPA, the EPTL and the Surrogate’s Court fee schedule. It is general information about New York law, not legal advice for a particular estate.
