What Your New York Probate Lawyer Handles and What You Must Do Yourself

The Division of Labor: Lawyer vs. Fiduciary

The lawyer represents the fiduciary in the fiduciary's official capacity. The lawyer does not become the fiduciary. Letters are issued to you, the estate account is opened in your name as executor or administrator, and the court holds you responsible for the estate. The table below shows how the work usually divides in a New York probate or administration.

Two consequences follow from this split. First, a fiduciary who delays sending bank statements or signing papers slows the estate no matter how fast the lawyer works. Second, the Surrogate reviews legal fees in part by asking which tasks required a lawyer and which were executorial work the fiduciary is already paid for through commissions. That distinction is discussed in the fee section below.

Before Filing: Choosing the Proceeding

The first decision is which proceeding to bring. Our administration and Letters Testamentary pages explain each track in detail; here the question is the lawyer's judgment call.

• Probate (SCPA Article 14): the decedent left a will. The nominated executor petitions to admit the will and receive Letters Testamentary.
• Administration (SCPA Article 10): no will, or a will that cannot be admitted. SCPA 1001 ranks who may serve, beginning with the surviving spouse, then children, grandchildren, parents, and siblings. The lawyer determines whether anyone with priority must consent or be cited before the client can receive Letters of Administration.
• Small estate (SCPA Article 13): personal property of $50,000 or less, excluding exempt property under EPTL 5-3.1 and excluding real property. The voluntary administrator files an affidavit under SCPA 1301 and often needs no lawyer at all. A lawyer who recommends full probate for an estate that qualifies here is wasting the client's money.
• Ancillary proceeding (SCPA Article 16): the decedent lived in another state or country but owned New York real property or accounts. See ancillary letters in New York.
• Preliminary or temporary letters: where a sale is pending, a business must be run, or property is at risk, the lawyer may apply for preliminary letters under SCPA 1412 or temporary letters under SCPA 901 so the fiduciary can act while the main petition is pending.

The lawyer also screens for assets that pass outside the estate: joint accounts with survivorship, accounts with designated beneficiaries, life insurance, retirement accounts, and property held in a trust. If everything passes that way, no proceeding may be needed. See how assets avoid probate in New York.

Who Must Be Cited, and the Kinship Proof the Court Requires

Two separate rules are often confused, including on other websites. SCPA 1403 lists the persons who must receive process in a probate proceeding: the decedent's distributees, anyone adversely affected by a codicil, any executor named in a later will on file with the court, and the Attorney General where a charity or an unknown heir is involved. The family tree requirement comes from the Uniform Rules for Surrogate's Court, 22 NYCRR 207.16, and from each court's practice. The rule requires a family tree affidavit from a disinterested person when the distributees are anyone other than a spouse or children, and an affidavit of due diligence when a distributee's identity or address is unknown.

The lawyer's work here is mostly investigation and paperwork:

• Interviewing the family and building the tree back to the generation that produces distributees, which may mean grandparents and their descendants when a decedent had no spouse, children, or living parents.
• Obtaining a signed and notarized Waiver of Process and Consent to Probate from each distributee willing to sign. Each waiver avoids a citation and a return date.
• Drafting the citation for anyone who will not sign, arranging personal service inside New York, and seeking an order for service by mail or publication under SCPA 307 for those outside the state or whose whereabouts are unknown.
• Serving Notice of Probate under SCPA 1409 on legatees and devisees who are not distributees. They receive notice, not process, and have no right to object unless they would also take in intestacy.
• Requesting a guardian ad litem under SCPA 403 for minors, persons under disability, and unknown distributees. The guardian's fee is paid by the estate, so the lawyer tries to narrow the class of unknowns before asking for one.

A probate petition filed with an incomplete tree or missing waivers is the single most common cause of delay in the New York City courts. For more on proving kinship, see affidavit of heirship.

Common Clerk Requisitions in Manhattan, Brooklyn, and Queens

The probate clerk reviews every petition before it reaches the Surrogate. If something is missing, the clerk issues a requisition, a written list of defects, and the file stops until each item is cured. Requisitions we see repeatedly include:

• Staple holes in the original will: if the will was ever unstapled, the court wants an affidavit explaining who removed the staples, when, and why. Tell your lawyer before anyone touches the original.
• No self-proving affidavit: if the attesting witnesses did not sign an affidavit under SCPA 1406 at the signing, the lawyer must locate the witnesses and obtain affidavits now, or examine them under SCPA 1404 if they cannot be found or will not cooperate.
• Name discrepancies: the decedent's name on the death certificate, the will, and the accounts do not match. The petition must list every variation.
• Waivers that are unsigned, undated, or not notarized: a frequent problem with relatives abroad, where the court may require a consular acknowledgment or apostille.
• Family tree gaps: a predeceased sibling listed without stating whether that sibling left children.
• Estate value inconsistent across the petition: the filing fee under SCPA 2402 is based on the gross estate stated in the petition, and the clerk checks the figure against the asset schedule.
• Missing proof of death of a prior-named executor when the petitioner is the alternate.

Each court publishes its own checklists, and the clerks apply them differently. A lawyer who files regularly in a given county builds the petition to that court's checklist the first time.

How Long Letters Take, County by County

Probate is filed in the Surrogate's Court of the county where the decedent was domiciled: New York County at 31 Chambers Street in Manhattan, Kings County at 2 Johnson Street in Brooklyn, Queens County at 88-11 Sutphin Boulevard in Jamaica, Bronx County at 851 Grand Concourse, and Richmond County at 18 Richmond Terrace in St. George. Nassau, Suffolk, and Westchester each have their own court. Most counties now accept or require electronic filing through NYSCEF.

Timing depends more on the papers than on the court, but volume matters. With every distributee's waiver in hand and no requisitions, Letters can issue in a matter of weeks in the lower-volume suburban courts and often within a few months in New York County. Kings and Queens carry heavier caseloads, and a petition that needs a citation adds a return date, usually set six to ten weeks out, plus any adjournments. A petition that requires a guardian ad litem, service by publication, or a kinship hearing should be measured in many months rather than weeks. We give clients a county-specific estimate after reviewing the family tree and the will, not before, because those two documents determine the path. The sample timeline walks through each stage.

After Letters Issue: What the Lawyer Does and What Only You Can Do

Letters authorize you to act. The lawyer then supports a process that the statute places in your hands.

• Estate identification number and account: the lawyer obtains the EIN from the IRS; you open the estate account at a bank. Estate funds may not pass through your personal account.
• Marshaling: you send certified Letters to each institution and collect the assets. Where a third party holds property and refuses to turn it over, the lawyer brings a discovery and turnover proceeding under SCPA 2103 and 2104. See discovery and turnover proceedings.
• Creditor claims: SCPA 1802 gives creditors seven months from the issuance of Letters to present claims, and a fiduciary who distributes before that period runs may be personally liable to a creditor who later appears. The lawyer evaluates each claim, drafts any rejection under SCPA 1806, and defends a rejected claim in the accounting under SCPA 1808 or in a separate action. You decide which valid claims to pay and in what order.
• Taxes: a New York estate tax return (Form ET-706) is due nine months after death if the gross estate exceeds the basic exclusion amount, which is indexed each year and exceeds $7 million for deaths in 2025. Because New York phases out the exclusion for estates more than five percent over the threshold, the lawyer and the accountant check this figure carefully. The estate's fiduciary income tax returns (federal Form 1041 and New York IT-205) are also your responsibility to sign.
• Accounting and release: in most uncontested estates the lawyer prepares an informal account and a receipt, release, and refunding agreement for each beneficiary. If a beneficiary will not sign, or if a minor or an unknown is involved, the lawyer files a judicial accounting under SCPA 2208. Our estate accounting page covers the formal proceeding.
• Commissions: you are entitled to statutory commissions under SCPA 2307 (five percent of the first $100,000 received and paid out, four percent of the next $200,000, three percent of the next $700,000, two and one-half percent of the next $4,000,000, and two percent above $5,000,000). The lawyer computes them; you may not pay them to yourself in advance without court approval.

Attorney Fees in New York Probate and How the Surrogate Reviews Them

New York has no statutory fee schedule for estate attorneys. Fees are set by agreement, and the agreement should be in writing. Three structures are common:

• Hourly: the lawyer bills time against a retainer. This is the norm for contested matters and for estates with unknown complications.
• Flat fee for the uncontested proceeding: a fixed amount to obtain Letters, with post-Letters work billed separately or under a second fixed fee. Clients prefer this for straightforward estates where all distributees will sign waivers.
• Hybrid: a flat fee through Letters and hourly thereafter, or a flat fee with carve-outs for litigation, real property sales, and tax returns.

A percentage of the estate is not a recognized basis for a legal fee in New York, although the size of the estate is one factor a court may consider. Ask any lawyer who quotes a percentage how the fee will be justified to the Surrogate.

The court has authority over fees paid from estate funds. Under SCPA 2110, the fiduciary, the attorney, or any interested party may petition the Surrogate to fix the attorney's compensation, and the court must fix it in a judicial accounting. Under SCPA 2111, an attorney may receive advance payment from the estate before the account is settled only with the written consent of the fiduciary and subject to later review, and the fiduciary who overpays bears the risk of a surcharge. Court rule 22 NYCRR 207.45 requires an affidavit of legal services describing the work, the time spent, and the result whenever the court is asked to approve a fee.

The standards the Surrogate applies come from the Court of Appeals decision in Matter of Freeman and the older Appellate Division decision in Matter of Potts: the time and labor required, the difficulty of the questions, the skill required, the lawyer's experience and standing, the amount involved and the benefit to the estate, the customary fee for similar services, and the results obtained. Courts routinely reduce fees for time spent on executorial tasks (collecting mail, calling banks, paying bills) that the fiduciary should have handled and is already compensated for by commissions. They also reduce fees where the attorney's own errors caused requisitions or delay.

One more rule bears on fees. If the lawyer who drafted the will is also named as executor, SCPA 2307-a required the testator to sign a written disclosure acknowledging that the lawyer may receive both commissions and legal fees. Without that disclosure, the attorney-executor's commissions are cut in half.

If You Are a Beneficiary, Not the Executor

Beneficiaries hire probate lawyers for different reasons than fiduciaries do. The lawyer's job is to protect your share and hold the fiduciary to the statute.

• Before the will is admitted: if you are a distributee, you decide whether to sign the waiver or demand a citation. A lawyer reviews the will for execution defects, capacity concerns, and undue influence facts, and advises whether to examine the witnesses under SCPA 1404 before deciding whether to object. If you were cut out of the will, see will contests in New York.
• Information: once the will is admitted, it is a public record you can obtain from the court file. Before then, SCPA 2102 allows a proceeding to compel the fiduciary to supply information about estate property. See whether beneficiaries are entitled to a copy of the will.
• Accounting: if the fiduciary will not account voluntarily, SCPA 2205 permits any interested person to petition to compel one. The lawyer then reviews the account, files objections to improper disbursements or missing assets, and conducts discovery.
• Removal: for a fiduciary who is dissipating assets, refusing to obey court orders, or otherwise unfit, SCPA 711 and 719 provide for suspension and removal. See removing an executor or administrator and resolving beneficiary and executor conflicts.

If You Are a Creditor

A creditor's lawyer makes sure the claim is presented correctly and on time. The claim must be in writing, state the amount and basis, and be delivered to the fiduciary or the fiduciary's attorney; SCPA 1803 allows the fiduciary to demand that it be verified. If the fiduciary rejects the claim or fails to act on it, the creditor may be required to prove it in the accounting proceeding or, under SCPA 1810, commence an action within the time the statute allows after rejection. A creditor who waits past the seven-month window in SCPA 1802 and finds the estate distributed has a far harder road.

What the Lawyer Does in a SCPA 1404 Examination

SCPA 1404 lets a party who has a right to object examine the attesting witnesses and the attorney who drafted the will before filing objections, and 1404(4) allows document discovery in the window set by court rule 22 NYCRR 207.27: generally three years before the will was signed through two years after, or the date of death if sooner. The examination is a deposition conducted at the courthouse or a law office, on the record.

For a potential objectant, the lawyer uses the examination to test the signing ceremony, the drafter's notes on the decedent's wishes, who arranged the appointment, who was in the room, and what the drafter observed about the decedent's condition. For the proponent, the lawyer prepares the witnesses, protects privilege where it still applies, and limits the scope to what the statute allows. The results drive the next decision: file objections, usually due within ten days after the examinations conclude unless the court sets another date, or sign a waiver and let the will be admitted.

Three Scenarios From Practice

The following are composites drawn from the kinds of matters we handle. They describe the decisions a lawyer makes, not the outcome of any case.

The missing cousin. A Queens decedent died without a will, spouse, children, or siblings. The nearest relatives were first cousins, one of whom had emigrated decades earlier and could not be found. The lawyer's tasks were to document the family tree through a disinterested affiant, prepare an affidavit of due diligence listing every search performed, request service by publication under SCPA 307, and ask the court to appoint a guardian ad litem for the missing cousin. The cost of the guardian was weighed against the delay of a longer search. The administrator's own tasks were to gather old letters and addresses and to sit for the kinship inquiry.

The late-life will. A Manhattan parent signed a new will eight months before death, shifting most of the estate to the child who had moved in as caretaker. The other child, a distributee, declined to sign a waiver. Counsel for the objecting child demanded 1404 examinations and the medical and financial records within the 207.27 window. Counsel for the proponent sought preliminary letters under SCPA 1412 so the apartment could be maintained and the maintenance paid while the contest proceeded. Both lawyers had to advise their clients on the cost of a trial against the value of a negotiated division.

The executor who stopped answering. Two years after Letters issued in Kings County, a beneficiary had received no accounting and no distribution. The lawyer's first step was a written demand; the second was a petition to compel an accounting under SCPA 2205; the third, after the account was filed, was objections to disbursements that appeared personal rather than estate expenses. The question of removal under SCPA 711 was held in reserve, because removal alone does not return money to the estate while a surcharge on the accounting can.

Court Filing Fees Under SCPA 2402

Court fees are separate from legal fees and are paid from the estate. The fee for a probate or administration petition scales with the gross estate: $45 for estates under $10,000, rising through several brackets to $625 for estates between $250,000 and $500,000, and $1,250 for estates of $500,000 or more. Certified copies of Letters, which banks and transfer agents demand, carry a per-copy charge. The lawyer advances these costs in some arrangements and bills them back; in others, you pay them directly.

Frequently Asked Questions

Can I probate a will in New York without a lawyer?
Yes. The courts publish forms and some counties have help desks. Small estates under SCPA 1301 are designed for self-filing. For a full probate with distributees who must be cited, a family tree beyond spouse and children, or any dispute, most fiduciaries retain counsel because a rejected petition costs more time than the fee saved.

Does the lawyer's fee come out of my pocket or the estate?
Legal fees for work that benefits the estate are an estate expense, paid from estate funds and subject to the Surrogate's review under SCPA 2110. If you are a beneficiary hiring your own lawyer to object to a will or an accounting, you pay that lawyer, although the court may in some circumstances award fees from the estate where the litigation benefited it.

Can the lawyer serve as executor too?
Yes, if the will names the lawyer or the court appoints the lawyer. If the drafting attorney is named, SCPA 2307-a disclosure rules apply, and the court will scrutinize whether the same work is being compensated twice.

How do I know if my lawyer is charging too much?
Ask for the engagement letter and itemized bills. Compare the time entries against the division of labor above. Work that is executorial should be yours, not billed. If the fee will be paid from the estate and you disagree with it, any interested party can ask the Surrogate to fix the fee under SCPA 2110.

Which county do I file in if the decedent owned property in two counties?
The county of domicile, meaning the permanent home, controls. Real property in a second New York county does not require a second proceeding. Real property in another state usually does, through an ancillary proceeding there.

Speak With a New York Probate Lawyer

We represent executors, administrators, beneficiaries, and creditors in the Surrogate's Courts of New York City, Long Island, and Westchester. If you have a will, a death certificate, and a list of the family, we can tell you which proceeding applies, which court, what the clerk will ask for, and what the legal work should cost. Call or contact our office to schedule a consultation.

This page is general information about New York probate practice and is not legal advice for any particular estate. Statutory citations should be confirmed against the current text of the SCPA, EPTL, and the Uniform Rules for Surrogate's Court.