SCPA 1607 & Article 16: Ancillary Probate for Out-of-State Decedents

When a person dies domiciled outside New York but leaves property located in New York, the executor appointed in the decedent's home jurisdiction generally has no authority to deal with that New York property. A probate decree from another jurisdiction does not, by itself, transfer title to New York real estate or compel a New York institution to release assets. To obtain that authority, the foreign fiduciary must open an ancillary probate proceeding in the New York Surrogate's Court. This page explains, in plain language, what ancillary probate is, which statutes govern it, who may serve, the step-by-step procedure, the costs involved, and the mistakes that most commonly delay these estates.

A note on citation: readers sometimes look for this topic under "SCPA 607." The provisions that actually govern estates of non-domiciliaries are found in Article 16 of the Surrogate's Court Procedure Act, SCPA 1601 through 1610. The section that determines who is entitled to receive ancillary letters is SCPA 1607, and the related provisions discussed below include SCPA 1602 (ancillary probate of a will admitted at the decedent's domicile), SCPA 1603 (petition and process), SCPA 1604 (proof of the foreign probate), SCPA 1605 (original probate of a non-domiciliary's will), SCPA 1608 (ancillary letters of administration where there is no will), SCPA 1609 (notice to the New York State Tax Commission), and SCPA 1610 (payment of New York debts before assets leave the state).

What Ancillary Probate Is

"Ancillary" means secondary or supplemental. The main (domiciliary) estate proceeding takes place where the decedent lived. The ancillary proceeding takes place in New York and is limited to the property that is subject to New York's jurisdiction. Under SCPA 1602, when a will has been admitted to probate in the jurisdiction where the decedent was domiciled at death, the New York Surrogate's Court will grant ancillary probate of that will and issue ancillary letters testamentary to the appropriate fiduciary. The New York proceeding does not re-litigate the will's validity; under SCPA 1604, the will is established by filing authenticated (exemplified) copies of the will and the foreign probate decree, and the foreign adjudication is generally accepted unless an objectant can show the foreign court lacked jurisdiction or the decree was obtained by fraud.

When Ancillary Probate Is Required

The most common trigger is New York real property. Under EPTL 3-5.1(b)(1), the disposition of real property is governed by the law of the state where the land sits. A will that has been probated only in the decedent's home jurisdiction is not effective to establish marketable title to New York real estate. Title insurance companies will not insure a sale by devisees, and a buyer's attorney will not close, until the will has been admitted in New York and a fiduciary holds New York letters. Ancillary probate is typically required when the non-domiciliary decedent left:

• A house, condominium unit, cooperative apartment, or vacant land located in New York;
• Tangible personal property physically located in New York, such as artwork, jewelry, or vehicles kept in the state;
• Accounts or assets held by institutions that insist on New York letters before releasing funds;
• A cause of action that must be prosecuted in New York courts. A foreign fiduciary generally cannot commence or maintain a lawsuit in New York on the estate's behalf without New York letters, so ancillary letters are frequently obtained for litigation purposes.

When Ancillary Probate Is Not Needed

Not every New York asset requires a Surrogate's Court proceeding. Ancillary probate is usually unnecessary where:

• The New York real property was held in joint tenancy with right of survivorship or as tenants by the entirety — title passes to the survivor by operation of law;
• The property was titled in a revocable trust — the successor trustee can act without court involvement;
• Accounts have designated beneficiaries or are payable-on-death;
• The decedent's New York property consists only of personal property worth $50,000 or less, which may qualify for the simplified voluntary administration procedure under SCPA Article 13 rather than a full ancillary proceeding.

Who Receives Ancillary Letters: SCPA 1607

SCPA 1607 establishes the order of priority for ancillary letters testamentary:

1. The person named in the will as executor with respect to New York property, if the testator made such a specific designation;
2. Otherwise, the domiciliary fiduciary — the executor actually appointed in the decedent's home jurisdiction;
3. If neither is eligible or willing, a person otherwise entitled to letters, consistent with the rules governing letters of administration with the will annexed.

Whoever applies must be eligible under SCPA 707. This is a frequent stumbling block: a person who is not a United States citizen and is not domiciled in the United States (a "non-domiciliary alien") is ineligible to serve alone and may receive letters only if a New York resident is appointed to serve as co-fiduciary, in the court's discretion. Felons and persons the court finds unfit are also ineligible. The Surrogate may require the ancillary fiduciary to post a bond under SCPA 801 and 805, particularly where New York creditors exist and the will does not dispense with security.

If There Is No Will: SCPA 1608

Where the non-domiciliary died intestate, SCPA 1608 authorizes ancillary letters of administration. Priority goes to the administrator appointed at the decedent's domicile or, if none, to the person entitled to administer the estate under the law of the domicile, subject again to SCPA 707 eligibility. Note that even in intestacy, New York real property descends according to New York law (EPTL 4-1.1), so New York counsel should confirm who the distributees are under New York's own intestacy rules.

Procedure in Surrogate's Court, Step by Step

1. Choose the correct venue

Under SCPA 206, the Surrogate's Court of any county where the decedent left property has jurisdiction over a non-domiciliary's estate. If property sits in more than one county, the court whose proceeding is commenced first retains exclusive jurisdiction. File where the real property is located.

2. Assemble the documentary proof

The petitioner must obtain from the domiciliary court exemplified (authenticated) copies of: the will, the decree or order admitting it to probate, and the letters issued to the fiduciary. "Exemplified" means certified under seal in the multi-part form New York courts require — plain photocopies or simple certified copies are routinely rejected. Also obtain a certified death certificate.

3. File the petition

The petition for ancillary probate under SCPA 1603 identifies the decedent, the domicile, the New York property and its value, the domiciliary proceeding, and — critically — the decedent's New York creditors, including the New York State Department of Taxation and Finance where taxes may be due. Unlike an original probate, the ancillary proceeding exists in part to protect New York creditors, so they receive process and an opportunity to be heard, and SCPA 1609 requires notice to the State Tax Commission.

4. Citation, waivers, and the return date

Citation issues to the domiciliary fiduciary (if not the petitioner), to New York creditors listed in the petition, and to any other necessary parties. Parties may sign waivers and consents to avoid a court appearance. If citation is required, the return date is typically several weeks out, and service on out-of-state parties must comply with SCPA 307.

5. Pay the filing fee (SCPA 2402)

The fee is based on the gross value of the New York property subject to the proceeding:

6. Decree and letters

If the papers are in order and no objections are filed, the Surrogate signs a decree granting ancillary probate and issues ancillary letters. Certificates of letters (roughly $6 each) are what banks, title companies, and buyers' attorneys will demand. An uncontested ancillary probate typically takes two to six months from filing to letters, depending on the county's calendar and the completeness of the exemplified documents.

A Worked Example

Suppose a decedent domiciled outside New York dies owning a New York condominium appraised at $650,000, subject to a $200,000 mortgage, and a contractor holds an $18,000 unpaid claim for renovation work on the unit. The will was admitted to probate at the domicile and names the decedent's daughter as executor.

• The daughter petitions for ancillary probate in the Surrogate's Court of the county where the condominium is located. As domiciliary executor, she has priority under SCPA 1607.
• The filing fee, based on the $650,000 gross value, is $1,250. The contractor, as a New York creditor, is listed in the petition and cited.
• After ancillary letters issue, the daughter contracts to sell the unit for $650,000. At closing she satisfies the $200,000 mortgage, pays brokerage commissions of $39,000 (6%) and closing adjustments, and deposits the net proceeds — roughly $405,000 — into a New York estate account.
• Under SCPA 1610, before transmitting anything to the domiciliary estate, she must pay the $18,000 New York creditor and confirm that no New York estate tax is due. Only the remaining balance may then be transmitted to the domiciliary jurisdiction for distribution under the will.

New York Estate Tax and the Lien on Real Property

New York imposes estate tax on a non-domiciliary's estate only with respect to real property and tangible personal property located in New York, and only where the estate is large enough to exceed the applicable thresholds tied to the New York basic exclusion amount ($7.16 million for deaths in 2025). Even where no tax is ultimately due, two points matter in practice. First, the New York estate tax return (Form ET-706), when required, is due nine months after death. Second, New York asserts a lien on the decedent's New York real property for any estate tax; title companies will require a release of lien (Form ET-117) or proof that no tax is due before insuring a sale. Ordering the lien release early is one of the simplest ways to avoid a delayed closing.

Common Pitfalls

• Assuming the home-state probate is enough. Devisees cannot deliver marketable title to New York real property without a New York proceeding.
• Submitting insufficiently authenticated documents. Courts reject copies that are not exemplified in the required form; obtaining proper exemplified copies from the domiciliary court should be the first task.
• Ineligible fiduciaries. A non-domiciliary alien executor cannot serve alone in New York (SCPA 707); plan for a New York co-fiduciary or an alternate.
• Omitting New York creditors from the petition. SCPA 1603 requires their disclosure; omissions can unravel a decree.
• Transmitting proceeds out of New York prematurely. SCPA 1610 requires New York debts and taxes to be addressed first; a fiduciary who ships assets to the domiciliary estate before doing so risks personal liability.
• Overlooking the estate tax lien on real property and the ET-117 release, which stalls closings at the last minute.
• Ignoring the original-probate alternative. Where no domiciliary probate is planned — for example, the decedent's only significant asset was the New York property — SCPA 1605 permits original probate of the non-domiciliary's will in New York, which can be faster and cheaper than opening two proceedings.

Ancillary probate is procedurally technical but, handled correctly, it is one of the more predictable Surrogate's Court proceedings. Attorney Albert Goodwin represents domiciliary executors, administrators, heirs, and creditors in ancillary probate and ancillary administration proceedings in New York Surrogate's Courts and can be contacted for a consultation regarding a non-domiciliary decedent's New York property.

Related resources on this site: ancillary letters attorney, probate.