New York Probate Litigation Lawyer: A Guide to Contested Estates in Surrogate's Court

What Probate Litigation Covers in New York

Surrogate's Court has jurisdiction over the affairs of decedents under SCPA 201 and over lifetime and testamentary trusts under SCPA 1501. Where the Surrogate's Court Procedure Act is silent, the Civil Practice Law and Rules apply through SCPA 102, so discovery, motion practice and trial largely follow the same rules as Supreme Court. The disputes that come through the court fall into a few categories:

• Probate contests: objections to a will under SCPA 1410 on the grounds of improper execution, lack of capacity, undue influence or fraud.
• Fiduciary accountability: compulsory accountings under SCPA 2205, objections to accounts, surcharge, and removal under SCPA 711 and 719.
• Recovery of property: discovery and turnover proceedings under SCPA 2103 and 2104, and constructive trust claims over assets moved before death.
• Spousal and family rights: the elective share under EPTL 5-1.1-A, intestate shares under EPTL 4-1.1, and exempt property under EPTL 5-3.1.
• Status disputes: kinship hearings and determinations under SCPA 2225 when the identity of the heirs is in doubt.
• Construction: proceedings under SCPA 1420 to determine what an ambiguous will or trust provision means.

Some related claims are not probate litigation. Partition of real property between co-owners, for example, is usually brought in Supreme Court under RPAPL Article 9, and disputes over a power of attorney during the principal's lifetime fall under General Obligations Law 5-1510. We handle those matters as well, but they follow different procedures.

How a Contested Probate Proceeding Moves Through Surrogate's Court

A will contest follows a defined sequence. Knowing the sequence matters because several deadlines run from the previous step.

1. Petition, citation and the return date

The nominated executor files a probate petition with the original will, the death certificate and a list of the decedent's distributees. Every distributee who would inherit if there were no will, and anyone adversely affected by the will, must receive notice. Those who do not sign a waiver and consent are served with a citation that lists a return date. The return date is the first court appearance, and it is the point at which you must decide whether to appear and reserve your right to object. If you ignore the citation, the court can admit the will on default.

2. SCPA 1404 examinations

Before filing objections, any party may examine the attesting witnesses and the attorney who drafted the will under SCPA 1404(4). If the will contains an in terrorem clause, the nominated executors and the proponents may also be examined. The examination is a deposition under oath, and the proponent must produce the witnesses. The drafter's file, including notes of the will-signing meeting, is typically produced as part of this process.

Under 22 NYCRR 207.27, the examination is normally limited to the period three years before the date of the will and two years after it, or to the date of death if sooner. The court can expand that window if you show special circumstances, such as a long pattern of isolation or a diagnosis that predates the three-year mark.

The 1404 examination is the single most useful tool available to a person who suspects a will is defective but lacks hard evidence. You can take it without filing objections, and EPTL 3-3.5(b)(3)(D) provides that taking it does not trigger a no-contest clause.

3. Filing objections under SCPA 1410

Any person whose interest in the estate would be adversely affected by admission of the will may file objections. A disinherited child, a beneficiary under an earlier will who receives less under the later one, and a distributee cut out entirely all have standing. A person whose only interest is in the commissions they would have earned as executor under a prior will does not, unless the court permits it for good cause. The Surrogate's Court rules generally require objections to be filed within ten days after the 1404 examinations are completed, unless the court sets a different date. Missing this deadline without an extension can end the contest.

4. Preliminary letters while the contest is pending

A contested estate still has bills, taxes and property to manage. The nominated executor may ask for preliminary letters testamentary under SCPA 1412, which allow administration to continue while probate is pending. Objectants can ask the court to restrict those letters, require a bond, or appoint a temporary administrator under SCPA 901 if the nominated executor is the person accused of wrongdoing.

5. Discovery

Once objections are filed, full CPLR Article 31 discovery opens: document demands, subpoenas for medical and financial records, depositions of the beneficiaries and caregivers, and expert review of medical charts and handwriting. Medical records are usually obtained by authorization or subpoena directed to hospitals, nursing homes and treating physicians. Bank records show who had access to the decedent's money and when.

6. Summary judgment, trial and decree

Proponents commonly move for summary judgment under CPLR 3212 after discovery closes, arguing that the objectant has no evidence on capacity or undue influence. If the motion is denied, the case proceeds to trial. SCPA 502 gives the parties a right to a jury on the factual questions in a probate contest, which must be demanded in time or it is waived. The court then enters a decree admitting or denying probate.

7. Appeal

Decrees of the Surrogate's Court are appealed to the Appellate Division: the First Department for New York and Bronx Counties, and the Second Department for Kings, Queens, Richmond, Nassau and Westchester. Under CPLR 5513 the notice of appeal is generally due within thirty days after service of the decree with notice of entry. See our page on appealing a Surrogate's Court judgment.

The Four Grounds for Objecting to a Will and Who Must Prove Them

New York recognizes four grounds for denying probate. The burden of proof is split between the parties, and that split often decides which side has the stronger position before any evidence is taken.

Due execution (proponent's burden)

EPTL 3-2.1 requires that the will be signed at the end by the testator, that the testator sign in the presence of at least two attesting witnesses or acknowledge the signature to them, that the testator declare the document to be a will, and that the witnesses sign within thirty days of each other. The proponent must prove each element. When an attorney supervised the signing, the court applies a presumption of regularity, and a self-proving affidavit under SCPA 1406 can substitute for live testimony if nobody objects. When a will was signed without a lawyer present, execution defects are far more common.

Testamentary capacity (proponent's burden)

The proponent must show that, at the moment of signing, the testator understood the nature and consequences of making a will, knew the nature and extent of their property, and knew the natural objects of their bounty and their relationship to them. The Court of Appeals set out this test in Matter of Kumstar, 66 N.Y.2d 691 (1985). The standard is lower than the capacity required for a contract. A dementia diagnosis does not by itself defeat capacity; the question is lucidity at the time of execution, which is why the medical records for the weeks around the signing date carry so much weight.

Undue influence (objectant's burden)

The objectant must prove that the influence exercised amounted to moral coercion that overpowered the testator's free will, as described in Matter of Walther, 6 N.Y.2d 49 (1959). Direct evidence is rare. Courts look at motive, opportunity and whether the influence was actually exercised, drawing inferences from isolation of the decedent, a confidential relationship with the beneficiary, the beneficiary's involvement in arranging the will, and a sharp departure from prior estate plans. Where a beneficiary in a confidential relationship (an attorney, a caregiver, an attorney-in-fact) receives a large bequest, the court may require that beneficiary to explain the gift.

Fraud (objectant's burden)

Fraud requires proof that someone knowingly made a false statement to the testator that caused the testator to sign a will they would not otherwise have signed. The objectant must prove fraud by clear and convincing evidence, a higher standard than the preponderance standard that applies to undue influence.

Forgery is treated as a failure of due execution and is proved with handwriting experts, exemplars, and the witnesses' accounts. Revocation by a later will or by physical act under EPTL 3-4.1 is a separate basis for denying probate of the earlier instrument. For a fuller treatment of strategy on each ground, see our will contest attorney page.

In Terrorem Clauses: What EPTL 3-3.5 Allows You to Do Without Forfeiting

Many New York wills contain a no-contest clause stating that a beneficiary who challenges the will forfeits their bequest. These clauses are enforceable in New York, but EPTL 3-3.5(b) carves out conduct that cannot trigger forfeiture. You may, without penalty:

• Take SCPA 1404 examinations of the attesting witnesses, the drafter, and (where the clause exists) the nominated executors and proponents.
• Contest the will on the ground of forgery or on the ground that it was revoked by a later will, provided the contest is based on probable cause.
• Object to the court's jurisdiction.
• Disclose to the court any information relating to the will.
• Refuse or fail to join in the petition for probate, or refuse to consent to probate.
• Bring a construction proceeding to determine what the will means.

If you are a beneficiary under the will and are weighing a contest, the decision turns on the size of the bequest you would forfeit against the size of what you would receive if the will fails and an earlier will or intestacy governs. That calculation should be done before objections are filed, not after.

The Dead Man's Statute

CPLR 4519 bars a party who is interested in the outcome from testifying about personal transactions or communications with the decedent when that testimony is offered against the estate. In practice, a child who says "my mother promised me the house" or a caregiver who says "he told me he wanted me to have the account" usually cannot give that testimony over objection. The rule shapes almost every estate case. Objectants need disinterested witnesses and documents. Fiduciaries defending a gift or a will need to build the record from the drafting attorney, medical providers and third parties rather than from their own account.

Which Proceeding Do I Need?

The right proceeding depends on what you are trying to accomplish and whether the estate already has a fiduciary. The table below matches common situations to the governing statute and links to the detailed page for each.

Recovering Estate Property: Discovery and Turnover Under SCPA 2103 and 2104

When money or property that should be in the estate is in someone else's hands, the fiduciary brings a discovery proceeding under SCPA 2103. The proceeding has two stages. In the inquiry stage, the respondent is ordered to appear and be examined under oath about the property, and to produce records. If the respondent claims to own the property, for example as a lifetime gift or as the surviving joint owner of an account, the matter moves to the turnover stage under SCPA 2104, which is a trial on title.

Typical targets are joint bank accounts opened in the decedent's final years, real property transferred by deed for little or no consideration, and transfers made by an agent under a power of attorney. Where a gift is claimed, the person asserting the gift must prove donative intent, delivery and acceptance by clear and convincing evidence under Gruen v. Gruen, 68 N.Y.2d 48 (1986). Where an agent under a power of attorney made gifts to themselves, General Obligations Law 5-1514 governs what gifting authority the agent actually had.

Only the fiduciary can bring a 2103 proceeding. A beneficiary who suspects assets are missing but whose executor refuses to act must first compel an accounting or seek removal, or ask the court for limited letters under SCPA 702 to pursue the claim.

Compulsory Accountings Under SCPA 2205

A fiduciary who will not explain where the money went can be ordered to account. Under SCPA 2205, a beneficiary, distributee, creditor or co-fiduciary may petition the court, which issues an order under SCPA 2206 directing the fiduciary to file a formal account within a set time. The account lists every asset received, every disbursement, every distribution, and the proposed commissions, with supporting schedules.

Once the account is filed, interested parties may examine the fiduciary under oath under SCPA 2211 and then file objections. The objectant must first point to specific items that appear improper. The fiduciary then bears the burden of proving the account is accurate and the transactions were proper. Where the fiduciary cannot justify a disbursement, the court surcharges the fiduciary personally, with interest, and may deny or reduce commissions.

Accountings also serve a defensive purpose. An executor who has done the job properly can petition for judicial settlement under SCPA 2208, obtain a decree approving the account, and end exposure to later claims. Executors facing accusations frequently resolve them by accounting voluntarily rather than waiting to be compelled. More on both sides of this process is on our estate accountings page.

Removing or Disqualifying an Executor, Administrator or Trustee

Three statutes govern who may serve and when they may be removed.

• SCPA 707 (eligibility): Letters cannot issue to a minor, an incompetent, a non-domiciliary alien serving alone, or a felon. The court may also refuse letters to a person who is unfit by reason of substance abuse, dishonesty, improvidence or want of understanding. These objections are raised before letters issue, typically at the return date.
• SCPA 711 (removal on petition): Grounds include wasting or improvidently managing estate property, dishonesty, substance abuse, failing to obey a court order, obtaining letters by a false suggestion of a material fact, and leaving the state or becoming unable to perform. The petitioner bears the burden, and courts do not remove a fiduciary for ordinary friction with beneficiaries.
• SCPA 719 (removal without process): The court may revoke letters summarily in listed situations, such as failing to file an account after being ordered to do so, a felony conviction, removing estate property from the state, or defaulting on a court order.

Short of removal, the court can suspend a fiduciary pending a hearing, require a bond even where the will waives one, or appoint a co-fiduciary. Detailed grounds and procedure are on our fiduciary removal page. If you are the fiduciary facing a removal petition, see our page on defending executors from disqualification and removal.

Spousal Rights: The Elective Share and the Intestate Share

New York does not allow a spouse to be fully disinherited. Two separate statutes protect the surviving spouse, and they are often confused.

The elective share under EPTL 5-1.1-A

For decedents dying on or after September 1, 1992, the surviving spouse may elect to take the greater of $50,000 or one-third of the net estate. The number of children does not change the fraction. (The older one-third-with-children, one-half-without rule under former EPTL 5-1.1 applies only to decedents who died before that date.)

The net estate for this purpose is not limited to probate assets. EPTL 5-1.1-A(b) adds back testamentary substitutes, which include Totten trust accounts, joint accounts and jointly held property with survivorship rights, revocable trusts, most retirement accounts, property subject to a general power of appointment, and gifts made within one year of death above the federal annual exclusion. The spouse's elective share is then reduced by whatever the spouse receives outright under the will or by intestacy. The remaining amount is paid ratably by the other beneficiaries and by the recipients of the testamentary substitutes.

The notice of election must be served on the fiduciary and filed with the court within six months after letters issue, and in no event later than two years after death, unless the court extends the time under EPTL 5-1.1-A(d). A spouse can lose the right through a valid waiver under EPTL 5-1.1-A(e) or through disqualification under EPTL 5-1.2, which covers divorce, abandonment and failure to support.

The intestate share under EPTL 4-1.1

If there is no will, the spouse takes the first $50,000 plus one-half of the balance when the decedent left children or other issue, and the entire estate when there are none. The issue share the remainder by representation under EPTL 1-2.16. If there is no spouse and no issue, the estate passes to the parents, then to the issue of the parents, then to grandparents and their issue, with the maternal and paternal sides each taking half.

Exempt property under EPTL 5-3.1

Separate from both shares, the surviving spouse (or minor children if there is no spouse) is entitled to set aside certain property before creditors are paid: up to $25,000 in cash or personal property, one motor vehicle worth up to $25,000, and household furnishings, books and similar items up to specified dollar limits.

Disputes over the elective share usually concern valuation and whether particular assets are testamentary substitutes. We represent both electing spouses and executors defending against inflated claims. See spousal claims against a New York estate and defending estates against inflated elective share claims.

Kinship Hearings

When a person dies without a will and without close family, the Public Administrator typically administers the estate and the court must determine who the distributees are before distributing. Alleged heirs, often cousins, must prove their relationship through vital records, census records, immigration files and testimony, and must also close the class by proving that no closer relatives exist. These hearings are usually held before a court attorney-referee.

Under SCPA 2225, once three years have passed since death and a diligent search has been made, the court may determine that no distributees exist other than those who have proven their status. Funds for unknown or unproven heirs are deposited with the Commissioner of Finance in New York City or the county treasurer elsewhere under SCPA 2222. Our kinship litigation page covers proof requirements, and the affidavit of heirship page covers the sworn statements used in simpler cases.

Disputed Lifetime Gifts and Beneficiary Designations

A large share of estate litigation involves assets that never pass through probate at all. A house deeded to one child a year before death, an account retitled jointly, a life insurance or IRA beneficiary form changed at the hospital. Because these assets bypass the will, the fight is over whether the transfer itself was valid.

For lifetime gifts, the recipient must prove intent, delivery and acceptance by clear and convincing evidence. Where the recipient held a confidential relationship with the decedent, the court looks closely at whether the gift was freely made. Constructive trust claims, which require a confidential relationship, a promise, a transfer in reliance on the promise, and unjust enrichment, are the usual vehicle for undoing a deed transfer.

Beneficiary designations on retirement accounts and life insurance are governed by contract and by EPTL 13-3.2, which confirms they are not testamentary dispositions. They can still be challenged for incapacity, undue influence, fraud or forgery, and they can be reached as testamentary substitutes by an electing spouse. Designations under employer-sponsored plans raise federal ERISA preemption questions that must be analyzed before suit. See defending a pre-death gift and defending beneficiary designations for the fiduciary's side, and when a relative leaves everything to a caretaker for the family's side.

Representing Executors and Administrators

About half of the firm's probate litigation work is on the fiduciary's side. Executors are accused of theft when the actual issue is a missing receipt. Administrators are challenged on eligibility by relatives who want the job themselves. Executors who co-owned a business with the decedent face claims that their share belongs to the estate. In each case the fiduciary is entitled to defend, and under SCPA 2110 reasonable attorney's fees for defending the estate are ordinarily payable from estate funds, subject to the court's review.

Our pages on defending a will against objections, defending executors accused of taking advantage of an estate and defending an executor's share of a business cover each scenario in detail.

Timelines, Courts and Costs

Where cases are heard

• New York County Surrogate's Court: 31 Chambers Street, Manhattan.
• Kings County Surrogate's Court: 2 Johnson Street, Brooklyn.
• Queens County Surrogate's Court: 88-11 Sutphin Boulevard, Jamaica.
• Bronx County Surrogate's Court: 851 Grand Concourse, Bronx.
• Richmond County Surrogate's Court: 18 Richmond Terrace, Staten Island.
• Nassau County Surrogate's Court: 262 Old Country Road, Mineola.
• Westchester County Surrogate's Court: 111 Dr. Martin Luther King Jr. Boulevard, White Plains.

Venue is the county where the decedent was domiciled at death under SCPA 205. Most downstate Surrogate's Courts use NYSCEF electronic filing for probate and administration matters.

How long contested matters take

An uncontested probate in these counties commonly takes several months from filing to letters. Once objections are filed, the timeline lengthens considerably. SCPA 1404 examinations are usually completed within a few months of the return date. Document discovery and depositions on a contested probate frequently run six to eighteen months. A case that goes to trial often takes two to three years from the return date to a decree, with variation by county calendar and by how many parties and experts are involved. Accounting proceedings and discovery proceedings tend to move faster than full will contests because the issues are narrower. Most contested estates settle before trial, often after the 1404 examinations or after summary judgment motions are decided. For a step-by-step view of an uncontested matter, see a sample NYC probate timeline.

Court fees and legal fees

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 certain petitions and certificates. Legal fees depend on the type of proceeding and how far it goes. Objectants typically pay their own counsel, by the hour or in some cases on a contingency basis tied to the recovery. A fiduciary's reasonable fees for administering and defending the estate are usually paid from the estate, subject to court approval under SCPA 2110. Under Matter of Hyde, 15 N.Y.3d 179 (2010), the court may allocate fees among the beneficiaries whose conduct generated them rather than charging the whole estate. We discuss fee arrangements before any engagement, in writing, as the Rules of Professional Conduct require.

How These Rules Apply: Three Illustrations

The following are hypothetical scenarios written to show how a case is analyzed. They are not descriptions of actual client matters or results.

Illustration 1: The late-life will in favor of a caregiver

A widow in Queens with three adult children signs a new will eight months before her death leaving her co-op and accounts to a home health aide who had been living with her for two years. The children had been named equally in a 2009 will. The children's first step is to appear on the return date and demand SCPA 1404 examinations of the two witnesses and the drafting attorney. The examination establishes who arranged the appointment, who was in the room, and what the attorney knew of the decedent's medical condition. Medical records from the surrounding period are subpoenaed. Because the aide was in a confidential relationship and participated in arranging the will, the court may require her to explain the bequest. The proponent carries the burden on capacity; the children carry the burden on undue influence. If the 1404 testimony is unfavorable to the aide, the case is often resolved by agreement before objections are tried.

Illustration 2: The executor who will not account

A brother serving as executor of a Brooklyn estate has held letters for three years, sold the family house, and has not distributed anything or provided financial information to his two sisters. The sisters petition under SCPA 2205 to compel an account. After the court orders the account, it shows large payments to the brother for "management" and "repairs" without invoices. The sisters examine him under SCPA 2211 and file objections to those items. The brother must then prove each disbursement was proper. Unsupported payments are surcharged against him, and the court may reduce his commissions. If the account reveals that he moved estate funds into his own name, the sisters may also petition for removal under SCPA 711.

Illustration 3: The executor accused of theft who did nothing wrong

A daughter is executor of her father's Nassau County estate. Her brother, who lives out of state, accuses her of looting the estate and threatens a removal petition. The executor's best response is to prepare and file a voluntary account under SCPA 2208 with complete receipts, ask the court to judicially settle it, and seek payment of her reasonable counsel fees from the estate under SCPA 2110. Once the account is settled by decree, the brother's claims are foreclosed, and the executor's exposure ends.

Frequently Asked Questions About Probate Litigation in New York

How long do I have to object to a will in New York?

You must appear on or before the return date listed in the citation and tell the court you intend to object, or your right to object may be lost by default. After that, objections are generally due within ten days after the SCPA 1404 examinations are completed, unless the court sets a different schedule. If you have received a citation, do not let the return date pass without acting.

Can I contest a will after it has been admitted to probate?

Only in limited circumstances. Once a decree admitting the will is entered, you must move to vacate it under CPLR 5015 and SCPA 209(10). Courts require a showing that you were not properly served or were otherwise excused from appearing, that you have a substantial basis for a contest, and that you acted promptly. This is a much harder standard than filing objections before the decree.

What is a 1404 exam?

A pre-objection deposition under SCPA 1404(4) of the people who witnessed the will and the attorney who drafted it, and, if the will has a no-contest clause, of the nominated executors and proponents. It lets you investigate the circumstances of the signing before committing to a contest and without triggering an in terrorem clause.

Who pays legal fees in a will contest?

Each side generally pays its own lawyer. The executor's reasonable fees for defending the will are usually paid from the estate, subject to the court's review under SCPA 2110. An objectant's fees are paid by the objectant unless a settlement provides otherwise or the court finds the objectant's work benefited the estate as a whole. Under Matter of Hyde, the court may also charge fees against the shares of beneficiaries who caused the litigation.

Does a no-contest clause mean I cannot challenge the will?

No. EPTL 3-3.5 lets you take 1404 examinations, object to jurisdiction, bring a construction proceeding, and contest on forgery or revocation grounds with probable cause, all without forfeiture. A full contest on capacity or undue influence does risk forfeiture if you lose, so the decision depends on what you stand to gain compared to what you would lose.

What is the difference between a will contest and an accounting?

A will contest asks whether the document should be given effect at all. An accounting assumes the fiduciary was properly appointed and asks whether the fiduciary handled the assets properly. If your complaint is that you were left out, you need a contest. If your complaint is that the money is missing, you need an accounting, and possibly a discovery proceeding or removal.

Can a beneficiary force the executor to turn over estate property held by a third party?

Not directly. Discovery proceedings under SCPA 2103 belong to the fiduciary. A beneficiary whose executor refuses to pursue missing assets can compel an accounting, petition for removal under SCPA 711, or ask for limited letters under SCPA 702 to pursue the claim.

How is the elective share calculated in New York?

Under EPTL 5-1.1-A, the surviving spouse may take the greater of $50,000 or one-third of the net estate, including testamentary substitutes such as joint accounts, Totten trusts, revocable trusts and most retirement accounts, reduced by what the spouse already receives. The notice of election is due within six months of letters and no later than two years after death unless extended.

Is there a jury in a New York will contest?

Yes, on demand. SCPA 502 preserves the right to a jury on the factual issues in a probate contest. Accounting proceedings and most other Surrogate's Court matters are tried to the Surrogate without a jury.

Can I testify about what my parent told me they wanted?

Usually not, if you are a party with a stake in the outcome and the testimony is offered against the estate. CPLR 4519, the Dead Man's Statute, bars it over objection. Your case will need to rest on documents, disinterested witnesses and the testimony of the drafting attorney and medical providers.

Who are the "distributees" who must be notified of a probate?

The people who would inherit under EPTL 4-1.1 if there were no will: the spouse and children first, then parents, siblings and their issue, and so on. Every distributee must receive a citation or sign a waiver, even if the will leaves them nothing.

Do I have to go to court in the county where the decedent lived?

Yes. SCPA 205 places venue in the Surrogate's Court of the county where the decedent was domiciled at death. A Manhattan resident's estate is handled at 31 Chambers Street even if the heirs live elsewhere.

About Albert Goodwin

Albert Goodwin is a New York estate and probate litigation attorney whose practice is concentrated in Surrogate's Court matters: will contests, accountings, discovery and turnover proceedings, removal petitions, elective share disputes and kinship hearings. He appears in the Surrogate's Courts of New York, Kings, Queens, Bronx, Richmond, Nassau and Westchester Counties and represents both the people challenging an estate and the fiduciaries administering it. Learn more about Albert Goodwin.

If you are a beneficiary who believes an estate is being mishandled, or a fiduciary facing accusations, we can review the file, identify the proceeding that fits, and explain the deadlines that apply to your situation. Call (212) 233-1233 to discuss your case.

Reviewed by Albert Goodwin, Esq., New York estate litigation attorney. This page is general legal information about New York law and is not legal advice for any specific situation. Statutory references are to the Surrogate's Court Procedure Act (SCPA), the Estates, Powers and Trusts Law (EPTL) and the Civil Practice Law and Rules (CPLR) as currently in effect.