What Probate Attorneys Do in New York

Reviewed by Albert Goodwin, Esq., New York estate litigation and probate attorney. Last reviewed: June 2024.

A New York probate attorney represents executors, administrators, beneficiaries, and creditors in proceedings before the Surrogate's Court of the county where the decedent lived. The role is defined less by paperwork than by procedure: New York probate is governed by the Surrogate's Court Procedure Act (SCPA) and the Estates, Powers and Trusts Law (EPTL), and each step has statutory requirements that a layperson rarely navigates alone. This page explains, in concrete New York terms, what a probate lawyer actually handles, what it costs, how long it takes, and where things commonly go wrong.

Where New York Probate Happens

Probate in New York is filed in the Surrogate's Court of the county where the decedent was domiciled at death (SCPA 205). Each of the 62 counties has its own Surrogate's Court with its own clerks, judges, and local practices. A Manhattan (New York County) filing moves differently from a Kings County (Brooklyn), Queens, Bronx, Nassau, Suffolk, or Westchester filing, and an experienced attorney knows the local intake, examiner, and citation-return practices of the specific court. The court issues two distinct documents depending on whether there is a will:

• Letters Testamentary — issued under SCPA Article 14 when the decedent left a valid will and the named executor is qualified. See our page on attorneys for Letters Testamentary.
• Letters of Administration — issued under SCPA Article 10 when there is no will (intestacy). The order of priority to serve is set by SCPA 1001, beginning with the surviving spouse and children. See our page on estate administration.

Until the court issues these Letters, no one has legal authority to access bank accounts, sell property, or pay creditors. Obtaining that authority is the first job of a probate attorney.

Preparing and Filing the Probate Petition

A probate attorney prepares the petition for probate (or administration) and the supporting filings the Surrogate's Court requires, which typically include:

• The original will, if any, which must be filed with the court;
• A certified death certificate;
• The petition identifying the decedent, the proposed fiduciary, the distributees (the closest living relatives entitled to notice under EPTL 4-1.1), and the beneficiaries named in the will;
• The probate citation, served on any interested party who does not sign a waiver and consent;
• An affidavit of attesting witnesses or, where witnesses are unavailable, an affidavit under SCPA 1405; and
• Payment of the filing fee, which under SCPA 2402 is tied to the size of the estate (ranging from $45 for estates under $10,000 up to $1,250 for estates of $500,000 or more).

A key procedural step is securing waivers and consents from the distributees. If everyone entitled to notice signs a waiver, the court can issue Letters without a contested hearing. If they do not, the attorney serves a citation requiring those parties to appear on a return date — the point at which a potential will contest may surface.

An Executor's Core Duties — A Checklist

Once appointed, a fiduciary takes on legally enforceable duties. A probate attorney advises the executor or administrator through each one:

• Marshal and inventory all estate assets, obtaining appraisals for real property, business interests, jewelry, art, and other items lacking a clear market value;
• Open an estate bank account and keep estate funds strictly separate from personal funds;
• Notify creditors and pay valid debts, including funeral expenses and the decedent's final income taxes;
• File a New York estate tax return if the estate exceeds the state exemption (the New York basic exclusion amount is indexed annually — confirm the current figure with counsel, as New York imposes a "cliff" that can tax the entire estate when it exceeds 105% of the exclusion);
• File a federal estate tax return (Form 706) if the estate exceeds the federal exemption;
• Distribute the remaining assets to beneficiaries under the will, or under the EPTL intestacy rules where there is no will; and
• Render a final accounting to the beneficiaries and, if required, to the court.

Locating and Valuing Assets

When estate assets are difficult to find, a probate attorney can use the court's authority to investigate. Under SCPA 2103, a fiduciary may bring a discovery and turnover proceeding to compel a person believed to be holding estate property to disclose and return it. Attorneys also issue subpoenas to financial institutions and use the inventory and appraisal process to establish defensible values for tax and distribution purposes. Where an asset is jointly titled or has a named beneficiary, an attorney advises whether it passes outside probate at all — a distinction that frequently surprises families.

Handling Disputes Before the Surrogate

New York probate attorneys spend much of their litigation time on two recurring disputes:

• Will contests. An interested party may object to probate on grounds of lack of testamentary capacity, undue influence, duress, fraud, or improper execution under EPTL 3-2.1. Objectants are entitled to depose the attorney-draftsperson and attesting witnesses under SCPA 1404 before deciding whether to file objections. Learn more on our will contest pages.
• Contested accountings. Beneficiaries who suspect mismanagement or self-dealing can compel an accounting under SCPA 2205 and file objections. This is the usual vehicle for claims of breach of fiduciary duty against an executor or administrator.

Where these disputes cannot be settled, the matter is tried before the Surrogate (and, in rare cases, a jury). Adverse Surrogate's Court determinations may be appealed to the Appellate Division.

How Long New York Probate Takes

An uncontested probate where all distributees sign waivers can produce Letters in roughly four to eight weeks, depending on the county's backlog. A matter requiring service of citations, kinship proof, or a missing-will affidavit takes several months longer. Contested matters involving objections, SCPA 1404 examinations, and discovery routinely run a year or more. For a step-by-step walk-through, see our sample NYC probate timeline.

What New York Probate Costs

Costs include the SCPA 2402 court filing fee, appraisal and certified-copy fees, and attorney's fees. Executor commissions are fixed by statute under SCPA 2307 on a sliding scale (for example, 5% on the first $100,000 and lower percentages on larger sums). Attorney's fees in New York are not set by a statutory percentage; they must be reasonable, and the Surrogate's Court has authority under SCPA 2110 to review and fix them.

Common New York Probate Pitfalls

• Failing to identify and serve every distributee, which stalls the issuance of Letters;
• Distributing assets before creditor claims and taxes are resolved, exposing the fiduciary to personal liability;
• Triggering the New York estate tax "cliff" by overlooking planning that keeps the estate under the exclusion;
• Commingling estate funds with personal accounts; and
• Assuming small estates need full probate — many qualify for the simpler voluntary administration procedure under SCPA Article 13 when personal property is $50,000 or less.

If You Want to Avoid Probate Entirely

Not every estate needs to go through Surrogate's Court. Assets held in a living trust, accounts with named beneficiaries, and jointly owned property generally pass outside probate. If your goal is to keep your estate out of court, read our guide on how to avoid probate in New York.

Frequently Asked Questions

Do I need a lawyer to probate a will in New York?

New York does not legally require an executor to hire an attorney, but the Surrogate's Court process is procedurally strict, and most fiduciaries retain counsel. If any party objects to the will, retaining an attorney becomes practically essential.

What is the difference between Letters Testamentary and Letters of Administration?

Letters Testamentary are issued when there is a valid will naming an executor. Letters of Administration are issued when there is no will, and the person appointed (the administrator) is determined by the priority list in SCPA 1001.

How long does an executor have to settle an estate in New York?

There is no fixed deadline, but beneficiaries can petition to compel an accounting seven months after Letters issue (SCPA 2205), and unreasonable delay can be grounds to seek the fiduciary's removal.

What happens if someone contests the will?

The objectant may conduct SCPA 1404 examinations of the witnesses and draftsperson, then file formal objections. The matter proceeds to discovery and, if unresolved, to trial before the Surrogate.

Speak With a New York Probate Attorney

Whether you need to be appointed executor or administrator, locate and value estate assets, defend or pursue an accounting, or respond to a will contest, a New York probate attorney can guide you through the Surrogate's Court process under the SCPA and EPTL. To discuss your specific situation, contact the Law Offices of Albert Goodwin at (212) 233-1233 to schedule a consultation.

This article is for general informational purposes and is not legal advice. Estate laws and exemption amounts change; consult a licensed New York attorney about your circumstances.