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 job 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 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 intake, examiner and citation-return practices of the particular court.
The court issues one of two documents depending on whether there is a will. Letters Testamentary issue 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 issue under SCPA Article 10 when there is no will, and 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 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 Petition
The attorney prepares the petition for probate (or administration) and the supporting filings the Surrogate’s Court requires.
| Filing | What it is |
|---|---|
| Original will | If there is one, the original must be filed with the court. |
| Death certificate | A certified copy. |
| Petition | Identifies 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. |
| Probate citation | Served on any interested party who does not sign a waiver and consent. |
| Witness affidavit | An affidavit of the attesting witnesses or, where the witnesses are unavailable, an affidavit under SCPA 1405. |
| Filing fee | Set by SCPA 2402 according to the size of the estate, from $45 for estates under $10,000 up to $1,250 for estates of $500,000 or more. |
A key 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, which is the point at which a potential will contest may surface.
The Fiduciary’s Duties
Once appointed, a fiduciary takes on legally enforceable duties, and the attorney advises the executor or administrator through each of them. The fiduciary must marshal and inventory all estate assets, obtaining appraisals for real property, business interests, jewelry, art and other items without a clear market value; open an estate bank account and keep estate funds strictly separate from personal funds; and notify creditors and pay valid debts, including funeral expenses and the decedent’s final income taxes.
Tax filings come next. A New York estate tax return is due if the estate exceeds the state exemption. The New York basic exclusion amount is indexed annually, so confirm the current figure with counsel; New York imposes a “cliff” that can tax the entire estate when it exceeds 105% of the exclusion. A federal estate tax return (Form 706) is due if the estate exceeds the federal exemption. The fiduciary then distributes what remains to the beneficiaries under the will, or under the EPTL intestacy rules where there is no will, and renders a final accounting to the beneficiaries and, if required, to the court.
Locating and Valuing Assets
When estate assets are hard to find, the 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, the attorney advises whether it passes outside probate at all, a distinction that frequently surprises families.
Disputes Before the Surrogate
Two disputes account for most of a probate attorney’s litigation time. The first is the will contest. An interested party may object to probate for lack of testamentary capacity, undue influence, duress, fraud or improper execution under EPTL 3-2.1, and objectants are entitled to depose the attorney-draftsperson and the attesting witnesses under SCPA 1404 before deciding whether to file objections. Our will contest pages cover this in detail.
The second is the contested accounting. Beneficiaries who suspect mismanagement or self-dealing can compel an accounting under SCPA 2205 and file objections to it. This is the usual vehicle for a claim of breach of fiduciary duty against an executor or administrator, and it is where a fiduciary who has kept careful records answers the charge. Where these disputes cannot be settled, the matter is tried before the Surrogate and, in rare cases, a jury. Adverse determinations may be appealed to the Appellate Division.
How Long It Takes and What It Costs
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 with 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.
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 Pitfalls
| Mistake | Consequence |
|---|---|
| Failing to identify and serve every distributee | The issuance of Letters stalls until it is done. |
| Distributing assets before creditor claims and taxes are resolved | The fiduciary is exposed to personal liability. |
| Overlooking the New York estate tax cliff | Planning that would have kept the estate under the exclusion is lost and the whole estate may be taxed. |
| Commingling estate funds with personal accounts | A breach of the fiduciary’s duty and a ready ground for objections. |
| Assuming a small estate needs full probate | Many qualify for the simpler voluntary administration procedure under SCPA Article 13 when personal property is $50,000 or less. |
Avoiding Probate
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
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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, an attorney becomes practically essential.
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What is the difference between Letters Testamentary and Letters of Administration?
Letters Testamentary issue when there is a valid will naming an executor. Letters of Administration issue when there is no will, and the administrator is chosen according to the priority list in SCPA 1001.
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How long does an executor have to settle an estate?
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.
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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.
Talk to Us
Whether you have been named executor, are next in line to administer an estate, or are a beneficiary waiting on one, call us at 212-233-1233 or email [email protected].
