New York Ancillary Probate for Out-of-State Decedents Who Owned New York Real Estate

A person who died domiciled in Florida, New Jersey, Connecticut, or any other state, but who still owned a house, condominium, co-op, or land in New York, leaves behind a New York problem. The home-state court cannot transfer title to New York real estate. A separate proceeding, called ancillary probate or ancillary administration, must be opened in the New York Surrogate's Court for the county where the property sits. This page explains how that proceeding works under Article 16 of the Surrogate's Court Procedure Act, what it costs, which court you file in, what papers the court will demand, and where cases get stuck.

This page is written for executors, administrators, and heirs of an out-of-state decedent who owned New York property. If the situation is reversed, a New York resident who owned property in another state, see the short section near the end and the planning pages linked there.

Author: Albert Goodwin, Esq., admitted to practice in New York and Florida. Last reviewed 2025. The fee schedules and tax figures below change over time; confirm current numbers before relying on them.

When a New York Ancillary Proceeding Is Required

New York law governs the transfer of New York real property no matter where the owner lived. EPTL § 3-5.1(b)(1) provides that the formal validity, intrinsic validity, and effect of a disposition of real property are governed by the law of the state where the land is located. A deed from an estate will not be accepted for recording by a county clerk or the New York City Register unless a New York Surrogate's Court has issued letters to the person signing it.

You will need a New York ancillary proceeding when the decedent was not domiciled in New York and owned, in his or her own name, any of the following:

• A house, condominium unit, multi-family building, vacant land, or commercial real estate anywhere in New York State.
• Shares in a cooperative apartment corporation. Co-op shares are technically personal property, but New York co-op boards and their transfer agents require New York letters before they will transfer the shares and proprietary lease, so an ancillary proceeding is needed in practice.
• Tangible personal property physically located in New York that a custodian refuses to release without New York letters, for example contents of a New York safe deposit box or artwork on consignment with a New York auction house.

You will generally not need a New York proceeding when the property passed outside the estate:

• Real estate held as joint tenants with right of survivorship or as tenants by the entirety passes to the survivor on recording of a death certificate.
• Real estate titled in the name of a revocable trust is transferred by the trustee without court involvement.
• Real estate held by an LLC stays in the LLC; the decedent's membership interest is personal property administered at the domicile.
• Real estate conveyed by a New York transfer-on-death deed under Real Property Law § 424, which New York adopted in 2024, passes to the named beneficiary on death.

One common misunderstanding: New York's small-estate procedure under SCPA Article 13 does not cover real property. There is no dollar threshold below which a New York house can skip the Surrogate's Court.

Ancillary Letters Testamentary vs. Ancillary Letters of Administration

SCPA Article 16 (§§ 1601 through 1612) creates two paths, depending on whether the decedent left a will.

Ancillary letters testamentary (SCPA § 1602): used when the will has already been admitted to probate in the decedent's domicile. The New York court does not re-try the will. It accepts the foreign court's decree on proper proof, records the will in New York, and issues ancillary letters. The person entitled to those letters is, in the first instance, anyone the will names as executor for New York property; otherwise, the fiduciary appointed in the domicile. A different New York fiduciary can be nominated where the domiciliary executor is unable to serve here.

Ancillary letters of administration (SCPA § 1607): used when the decedent died without a will and an administrator or personal representative has been appointed in the domicile. New York issues letters to that fiduciary, or to a person designated by the distributees, to deal with the New York property. Distribution of the New York real estate in an intestate ancillary proceeding follows New York's intestacy statute, EPTL § 4-1.1, because the land is here.

In either case, the ancillary fiduciary's authority is limited to New York assets. Article 16 requires the fiduciary to pay New York creditors and New York taxes from the New York assets before transmitting any balance to the domiciliary fiduciary or distributing it to beneficiaries.

What an "Exemplified" Copy Is, and Why a Certified Copy Is Not Enough

The single most common reason an ancillary petition is rejected at the clerk's window is that the petitioner brought certified copies when the court requires exemplified copies.

A certified copy carries the foreign clerk's attestation, under seal, that the document is a true copy of the court record. An exemplified copy adds a second and usually a third layer: a certificate from a judge of that court stating that the clerk is the lawful custodian of the record and that the attestation is in due form, and then a further certificate from the clerk that the signer is in fact a judge of the court. This is the "triple certificate" or "triple seal" that CPLR 4540 and 28 U.S.C. § 1738 contemplate for records of another state's courts. In Florida, you request this from the clerk of the circuit court in the county where the probate was opened; the request must specifically say "exemplified" and should cover three items together: the will, the order admitting it to probate, and the letters of administration.

Order at least two exemplified sets. The Surrogate's Court keeps one. A title company or co-op transfer agent will frequently want to see the other.

Who Can Serve as the New York Ancillary Fiduciary

The domiciliary executor usually serves in New York as well, but New York's eligibility rules apply. Under SCPA § 707, a person who is not a United States citizen and is not domiciled in the United States (a "non-domiciliary alien") cannot serve alone; such a person may serve only together with a co-fiduciary who is a New York resident. A non-resident United States citizen is eligible to serve alone. A person with a felony conviction is ineligible. These restrictions catch families where the executor named in a Florida will is a child living in Canada, Israel, or the United Kingdom.

Bonds for Non-Resident Fiduciaries

Many out-of-state executors are surprised to learn that New York can require a surety bond even though the will dispenses with one and the home state never asked for one. The Surrogate has discretion to require a bond from a non-domiciliary fiduciary, and New York City courts exercise that discretion often. In our experience, the New York County and Kings County Surrogate's Courts will usually require a bond from a non-resident ancillary fiduciary unless every beneficiary of the New York property signs a consent to dispense with the bond, or the fiduciary is the sole beneficiary. Queens, Nassau, Suffolk, and Westchester apply the same rule but tend to accept written consents more readily.

Practical points about the bond:

• Amount: set by the court, typically at the value of the New York property plus anticipated rent or sale proceeds the fiduciary will hold.
• Premium: surety companies price probate bonds at an annual rate that commonly runs between one-half of one percent and one percent of the bond amount, with lower rates on larger bonds. A bond of $500,000 often costs in the low thousands of dollars for the first year, and it renews annually until the fiduciary is discharged. The premium is an estate expense.
• Underwriting: sureties check the fiduciary's credit and generally require that the fiduciary be represented by a New York attorney. Some sureties will not write a bond for a fiduciary living outside the United States.
• Avoiding it: get written consents to dispense with the bond from all adult, competent beneficiaries of the New York property before filing, or nominate a New York resident beneficiary to serve as the ancillary fiduciary.

New York Surrogate's Court Filing Fees (SCPA § 2402)

The filing fee for an ancillary probate or ancillary administration petition is set by SCPA § 2402 and is based on the gross value of the New York assets passing through the proceeding, not on the value of the whole estate.

Because most New York City real estate is worth more than $500,000, the filing fee for a typical ancillary petition is $1,250. Each certificate of letters costs an additional $6; you will want several, since the title company, the bank holding sale proceeds, the co-op, and the tenants' management company each want an original. Exemplified copies from Florida run roughly $10 to $20 per set plus per-page copy charges, depending on the county.

Other costs to budget for: the surety bond premium discussed above, a recent appraisal of the property (needed for the petition, the estate tax return, and to establish the stepped-up basis), and legal fees for the New York proceeding, which are a separate engagement from the home-state probate.

Which Court: Filing in the County Where the Property Is Located

Venue is the Surrogate's Court of the county where the New York property is located (SCPA § 206). If the decedent owned property in two New York counties, you file in one and the letters are good statewide. The Surrogate's Courts most often involved in our ancillary matters are:

• New York County (Manhattan): 31 Chambers Street, New York, NY 10007.
• Kings County (Brooklyn): 2 Johnson Street, Brooklyn, NY 11201.
• Queens County: 88-11 Sutphin Boulevard, Jamaica, NY 11435.
• Bronx County: 851 Grand Concourse, Bronx, NY 10451.
• Richmond County (Staten Island): 18 Richmond Terrace, Staten Island, NY 10301.
• Nassau County: 262 Old Country Road, Mineola, NY 11501.
• Suffolk County: 320 Center Drive, Riverhead, NY 11901.
• Westchester County: 111 Dr. Martin Luther King Jr. Boulevard, White Plains, NY 10601.

Processing times differ. In our experience a complete ancillary petition in Queens, Nassau, or Westchester often results in letters within four to eight weeks. New York County and Kings County commonly take two to four months because of volume. An incomplete exemplification or an unresolved bond question adds a month or more in any county. For a comparison with a full original probate, see our sample NYC probate timeline.

Step by Step: Ancillary Probate of a Florida Will in New York

1. Open the Florida estate. The Florida personal representative is appointed by the circuit court in the decedent's county of domicile. New York will not issue ancillary letters testamentary until the domiciliary court has admitted the will.
2. Order exemplified copies. Request exemplified copies of the will, the order admitting it, and the letters of administration from the Florida clerk. Request at least two sets.
3. Gather New York documents. A certified death certificate, the current deed to the New York property (available from ACRIS for New York City or the county clerk elsewhere), the most recent property tax bill, a broker's opinion of value or appraisal, mortgage payoff information, and names and addresses of everyone who takes an interest in the New York property under the will.
4. Prepare the petition. The ancillary probate petition identifies the decedent, the domiciliary proceeding, the New York property and its value, New York creditors known to the petitioner, and the persons interested in the New York property. It is accompanied by the exemplified copies, death certificate, proposed decree and letters, consents or waivers from beneficiaries, and, if required, the bond.
5. Address notice. Because the will has already been proved in Florida, New York does not re-cite the distributees on the question of validity. The court may still require notice to beneficiaries of the New York property and, where the petition shows New York debts, to New York creditors.
6. Obtain the decree and letters. Once the clerk's department and the law department have reviewed the file, the Surrogate signs a decree granting ancillary probate and the clerk issues ancillary letters testamentary.
7. Administer the New York property. The ancillary fiduciary can now sign a contract of sale and deed, deal with tenants, collect rent, pay the mortgage, file the New York estate tax return if one is due, and distribute or sell the property.
8. Close out. After New York debts and taxes are paid, the fiduciary transmits the balance to the Florida estate or distributes directly to the beneficiaries, depending on the will and the court's decree, and files a receipt and release or a formal accounting as the court requires.

Alternative: Original Probate in New York Under SCPA § 1605

Ancillary probate assumes a domiciliary proceeding exists. Sometimes none is needed. A Florida resident whose only probate asset anywhere is a Brooklyn brownstone has nothing to probate in Florida. In that situation SCPA § 1605 allows the New York Surrogate's Court to entertain original probate of a non-domiciliary's will, provided the will is validly executed under EPTL § 3-5.1(c), which honors a will executed in accordance with the law of New York, the place of execution, or the decedent's domicile. The court has discretion to decline original probate if the matter belongs at the domicile.

The Court of Appeals approved this approach in Matter of Heller-Baghero, 26 N.Y.2d 337 (1970), where the will of an Austrian domiciliary with New York assets was admitted to original probate in New York. The practical advantage is cost: one proceeding instead of two, no exemplified copies, and no waiting on a foreign court. The practical disadvantage is that an original probate in New York requires citation to all distributees, so an uncooperative heir can slow it down in a way that is not possible in an ancillary proceeding. Whether to go this route is a judgment call made at the first meeting, after we know where the assets are and who the heirs are.

Surviving Spouse Rights: New York's Elective Share Usually Does Not Apply

A frequent question from families is whether the surviving spouse of a Florida decedent can claim New York's one-third elective share against the New York house. Usually not. EPTL § 5-1.1-A(c)(7) provides that the right of election is not available to the spouse of a decedent who was not domiciled in New York at death, unless the decedent elected in the will, under EPTL § 3-5.1(h), to have New York law govern the disposition of New York property. The Court of Appeals reached the same result on the common-law side in Matter of Clark, 21 N.Y.2d 478 (1968), holding that a surviving spouse's rights in a non-domiciliary's personal property are governed by the law of the domicile even where the will selected New York law. The spouse's remedy, if any, lies under the home state's elective share or homestead rules, and the New York ancillary fiduciary follows whatever the domiciliary court decides.

New York Estate Tax on a Non-Resident's New York Real Estate

Florida has no estate or inheritance tax. New York does, and it reaches New York real property and tangible personal property owned by non-residents under Tax Law § 960. Three features matter for an out-of-state estate:

• The threshold is measured against the whole estate, not the New York property. A non-resident estate must file New York Form ET-706 if the decedent's federal gross estate plus adjusted taxable gifts exceeds the New York basic exclusion amount and the decedent owned New York real or tangible property. The basic exclusion amount is $7,160,000 for deaths in 2025 (it was $6,940,000 for 2024) and is indexed annually. A Florida decedent with a $9 million estate and an $800,000 Queens house has a New York filing obligation even though the house alone is far below the threshold.
• The cliff. New York's exclusion phases out rapidly once the taxable estate exceeds 105 percent of the exclusion amount. Above that point the exclusion disappears entirely and the whole New York-apportioned estate is taxed at graduated rates up to 16 percent. There is no cliff in the federal system, so this often catches Florida families off guard.
• Apportionment. The tax is computed as if the decedent were a New York resident and then multiplied by the ratio of New York property to the total gross estate. Only the New York share is owed.

The return and payment are due nine months after death. A sale of the New York property cannot close with clean title until the estate tax is paid or the Department of Taxation and Finance issues a release of lien. On the sale itself, budget for New York State transfer tax of 0.4 percent of the price (with an additional rate on residential sales of $3 million or more in New York City) and, within the five boroughs, New York City Real Property Transfer Tax of 1 percent on residential sales up to $500,000 and 1.425 percent above that. These are seller costs that come out of the estate's proceeds.

Illustrative Example: Florida Decedent, Two-Family House in Queens

The facts below are a composite of the pattern we see most often. They are simplified for illustration and do not describe a particular client or promise a particular result.

A retired couple moved from Flushing to Boca Raton and kept their two-family house in Queens as a rental. The husband died first; the house was in both names as tenants by the entirety, so it passed to the wife by recording a death certificate. When the wife died two years later, the house was in her name alone, and her Florida will left everything equally to two sons, one in Florida and one in London, naming the Florida son as personal representative.

What had to happen: The Florida son opened a summary or formal administration in Palm Beach County and obtained letters. He ordered two exemplified sets. The petition for ancillary letters testamentary was filed in the Queens County Surrogate's Court with the exemplified Florida papers, a certified death certificate, a copy of the ACRIS deed, a broker's valuation of the house, and a consent from the London son to dispense with a bond. Because the Florida son is a United States citizen, SCPA § 707 was not an obstacle; had the will named the London son instead, a New York co-fiduciary would have been required. Ancillary letters issued, the tenants were notified in writing where to send rent, the house was listed, and the contract of sale recited that the seller was acting under Queens County ancillary letters. The total estate was below the New York estate tax threshold, so no ET-706 was required, and the title company closed on a certified copy of the letters and a certified death certificate.

What typically delays a matter like this: a Florida clerk sending certified rather than exemplified copies (two to three weeks lost); a beneficiary abroad whose consent needs a notarization acceptable in New York (an apostille or a United States consular acknowledgment); and a tenant who stops paying rent once the owner dies, which the ancillary fiduciary can address only after letters issue. For the landlord side of that problem, see our page on representing landlords and, for family members occupying the property, a beneficiary living in the inherited house.

Selling or Transferring the New York Property After Letters Issue

Once ancillary letters are in hand, the fiduciary's powers over the New York property come from EPTL § 11-1.1, which authorizes a fiduciary to sell, lease, and mortgage real property unless the will provides otherwise. Two issues come up at closing:

Specific devise vs. residuary. If the will leaves the New York house to a named person, title vests in that devisee at death, subject to the fiduciary's power to sell if needed to pay debts and taxes. A title company will want the devisee to join in the deed or will want a court order authorizing the sale. If the house passes under the residuary clause, the fiduciary alone can convey.

Executor's commissions. Under SCPA § 2307, the ancillary fiduciary is entitled to statutory commissions on New York property that is sold and the proceeds distributed, but not on real property that is specifically devised and simply deeded to the devisee.

If two or more beneficiaries inherit and disagree about keeping or selling, see our pages on buying out a co-owner of an inherited residence and partition of real property.

Where Ancillary Matters Get Stuck

• No domiciliary proceeding exists. The family assumed a Florida trust or beneficiary designations covered everything and never opened a Florida estate. Ancillary letters testamentary cannot issue without a domiciliary decree, so either a Florida estate is opened or we evaluate original probate under SCPA § 1605.
• Wrong kind of copies. Certified instead of exemplified. See above.
• Ineligible fiduciary. The named executor lives outside the United States and is not a citizen. A New York resident co-fiduciary must be added.
• Bond underwriting. The non-resident fiduciary has thin credit or lives abroad and the surety declines. Solution is usually beneficiary consents or a different fiduciary.
• Old deed problems. The deed into the decedent misspells a name, omits a prior spouse's release, or shows an undischarged mortgage from the 1990s. These surface in the title report and must be cured before closing.
• Estate tax lien. A large out-of-state estate with a modest New York property still needs a New York release of lien before title will insure.
• Occupants. A relative living in the house rent-free, or tenants who stop paying, cannot be dealt with until letters issue. See access to a house after death.

The Reverse Situation: New York Residents With Property in Florida or Another State

This page covers the inbound case. For a New York domiciliary who owned Florida real estate, the New York estate is the primary proceeding and Florida requires its own ancillary administration under the Florida Probate Code, with Florida counsel of record. Our office is admitted in both states and handles both sides. The better answer for most New York families who own a Florida condominium is to avoid the second proceeding altogether by deeding the Florida property into a revocable trust or using a Florida enhanced life estate deed. Those planning options are covered on avoiding probate in New York, the benefits of a living trust, and advanced New York estate planning techniques.

Frequently Asked Questions

Can the Florida executor sign a deed to the New York house using Florida letters?

No. New York county clerks and the New York City Register will not record a deed signed under another state's letters. The signer must hold New York ancillary letters, and a title company will require a certificate of those letters dated within a few months of closing.

Does the New York court look at whether the will is valid?

In an ancillary probate under SCPA § 1602, the court accepts the domiciliary court's determination and does not re-examine execution or capacity. Anyone who wants to contest the will must do so in the domicile. The exception is original probate under SCPA § 1605, where New York applies its own procedure and distributees are cited.

What if the New York property was the only asset and there is no will?

If no one has been appointed in the domicile, ancillary letters of administration under SCPA § 1607 are not available because there is no domiciliary fiduciary to recognize. The usual course is to open an administration proceeding in the domicile first, or, where the facts fit, to petition New York for original letters of administration on the New York property. See letters of administration.

How long do ancillary letters take?

With complete papers, one to three months depending on the county, after the domiciliary letters and exemplified copies are in hand. Add time for a bond, foreign consents, or a required notice to creditors.

Does New York's elective share protect the surviving spouse?

Not for a non-domiciliary decedent, unless the will elected New York law under EPTL § 3-5.1(h). See EPTL § 5-1.1-A(c)(7). The spouse's rights are determined under the law of the domicile.

Is New York estate tax owed on a non-resident's New York house?

Only if the decedent's total gross estate exceeds the New York basic exclusion amount for the year of death ($7,160,000 for 2025). If it does, the tax is apportioned to the New York property and a release of lien is needed before the property can be sold with insurable title.

Can a co-op apartment be transferred without ancillary letters?

In practice, no. Although co-op shares are personal property, the cooperative corporation controls the transfer and will require New York letters, an estate tax waiver or affidavit where applicable, and board approval of any purchaser.

What to Bring to the First Meeting

• Certified death certificate.
• Copy of the will and any codicils, and the home-state probate decree and letters if already issued.
• Deed and most recent tax bill for each New York property; co-op stock certificate and proprietary lease if applicable.
• Mortgage statements and any known New York creditors.
• Leases and rent rolls if the property is tenanted.
• Names, addresses, and citizenship of the named executor and each beneficiary of the New York property.
• A rough estimate of the total estate, everywhere, so we can assess the New York estate tax question early.

Speak With a New York Ancillary Probate Attorney

We handle ancillary probate and ancillary administration in every New York county, and we handle the Florida side of New York-Florida estates from our Florida office. For a short description of the service and fees, see ancillary letters in New York. For original probate of a will in New York, see letters testamentary. Call the Law Offices of Albert Goodwin at (212) 233-1233 to schedule a consultation.