What Probate Attorneys Do in New York: Role, Fees and When You Need One

Does New York Require a Probate Attorney?

No statute requires an executor or administrator to hire a lawyer. The Surrogate's Courts publish do-it-yourself forms, and most counties have a help center or a clerk's office that will accept a paper filing from an unrepresented person. The small estate procedure under SCPA Article 13 (voluntary administration, for personal property of $50,000 or less and no real property passing through the estate) was designed for people to use without counsel.

There is a limit. A fiduciary acts for other people: the beneficiaries and the creditors. Once anyone other than the fiduciary has a stake in the outcome, Surrogate's Courts commonly take the position that a non-lawyer executor who drafts pleadings and argues positions on behalf of the estate is practicing law for others, and will direct that counsel appear. In practice, the court's tolerance for a self-represented fiduciary ends when a citation has to be served on a non-consenting relative, when kinship has to be proved, or when anyone files objections.

When an executor can reasonably proceed alone

• The estate qualifies for voluntary administration under SCPA Article 13.
• There is a will, every distributee listed in SCPA 1403 is an adult, known, locatable and willing to sign a waiver and consent, and the executor is also the sole or principal beneficiary.
• No real property is being sold through the estate and there is no co-op.
• No estate tax return is due and the decedent's income tax filings are current.

When counsel is effectively required

• Kinship proof: the decedent had no spouse, children or parents, and the court needs a documented family tree, often with a hearing before a court attorney-referee.
• Missing or unknown distributees: the court will appoint a guardian ad litem under SCPA 403, and service by publication may be ordered.
• Real property: a house, condo or co-op has to be deeded, sold or transferred, and title companies and co-op boards will expect Letters and attorney-prepared closing documents.
• Out-of-state or foreign assets: ancillary proceedings are needed in another jurisdiction, or a non-domiciliary estate needs ancillary letters here.
• A distributee refuses to sign a waiver or has signaled an intent to object.
• A beneficiary demands an accounting or threatens a breach of fiduciary duty claim.
• Estate tax exposure: New York's basic exclusion amount is adjusted annually and is above $7 million for 2025 deaths; estates near the threshold face a cliff that eliminates the exclusion entirely.

What the Attorney Does That the Executor Cannot

The executor's job is administrative. The attorney's job is legal. The division matters because the executor is personally liable for mistakes, and the attorney's role is to keep the executor out of the categories of mistake that lead to surcharge.

• Determining who must be cited: SCPA 1403 requires notice to every distributee, to the executor named in any later will, and to others. An omitted distributee can reopen a probate decree years later. The attorney builds the distributee list and decides when an affidavit of heirship or a kinship hearing is needed.
• Drafting and verifying the petition: the petition is a sworn pleading. Errors in the stated value of the estate, the list of interested persons or the description of the will are the attorney's responsibility to prevent.
• Preliminary and limited letters: where the estate needs someone with authority before full probate, the attorney applies for preliminary letters under SCPA 1412 or limited letters under SCPA 702, for example to secure an apartment, stop a foreclosure or pursue a wrongful death claim.
• Advising on fiduciary powers and conflicts: EPTL 11-1.1 lists what a fiduciary may do without court approval. Buying estate property, lending estate funds to oneself or paying one beneficiary early are the actions that generate litigation. The attorney tells the executor no before it happens.
• Creditor claims: deciding whether to reject a claim, how to handle a Medicaid recovery notice from the county, and when the seven-month period under SCPA 1802 has run.
• Tax elections and filings: coordinating with an accountant on the decedent's final Form 1040 and IT-201, the estate's fiduciary income tax returns (Form 1041 and IT-205), and estate tax returns where required.
• Receipts, releases and the accounting: drafting the documents that protect the executor from later claims, and preparing a formal judicial accounting when informal settlement is not possible.
• Representing the estate in any contested matter: will contests, turnover proceedings under SCPA 2103, and removal proceedings.

What stays with the executor: locating assets, opening the estate account, collecting mail, dealing with banks and brokerages, maintaining the real property, and keeping the records the attorney will later need for the accounting.

How New York Probate Attorneys Charge

New York has no statutory attorney fee schedule for probate. States such as California and Florida set attorney fees as a percentage of the estate by statute. New York does not, and its courts have repeatedly refused to approve fees that rest on a percentage alone. Three billing models are in use.

• Hourly: the most common model for anything contested or unpredictable. In the New York City area, hourly rates for estate attorneys commonly run from roughly $350 to $700 or more depending on experience, with paralegal time billed lower. Expect a retainer paid up front, replenished as the matter proceeds, with the balance ultimately charged to the estate.
• Flat fee: common for uncontested probate or administration. The fee usually covers the petition, waivers or citations, obtaining Letters, and basic guidance through distribution. It usually excludes the sale of real property, kinship hearings, litigation, tax return preparation and a formal judicial accounting, each of which is quoted separately. Flat fees for an uncontested downstate estate with signed waivers typically fall in the low to mid thousands of dollars and rise with real property, citations and the number of beneficiaries.
• Percentage of the estate: some firms quote a percentage, often in the range of two to five percent. The Surrogate's Court is not bound by that agreement. The leading cases, Matter of Freeman, 34 N.Y.2d 1 (1974), and Matter of Potts, 213 A.D. 59 (4th Dep't 1925), require the court to look at time spent, difficulty, the amount involved, the benefit to the estate, the attorney's standing and the results obtained. A fee that is large only because the estate is large is routinely reduced. For that reason, percentage retainers are uncommon in New York practice and should be viewed with caution.

Ask any attorney you interview three questions: what is included in the quoted fee, what triggers additional charges, and whether the fee is payable from the estate or from you personally in the interim. Get the answers in a written retainer. New York's Part 1215 of the Joint Rules of the Appellate Divisions requires a written letter of engagement for most matters where the fee is expected to exceed $3,000.

Who Pays the Attorney

Legal fees incurred by the executor or administrator for the benefit of the estate are an administration expense. They are paid from estate assets, ahead of general creditors and beneficiaries, under the priority rules in SCPA 1811. They are also deductible on the estate tax return or the fiduciary income tax return, which matters for larger estates. If the executor advances fees personally before the estate account is funded, the executor is reimbursed from the estate.

A beneficiary who hires separate counsel ordinarily pays that lawyer personally or from their own share. There are exceptions. Under SCPA 2110, the court may direct that fees be paid from the estate, from a particular beneficiary's share, or allocated among shares. In Matter of Hyde, 15 N.Y.3d 179 (2010), the Court of Appeals held that the court should consider who benefited from the work and whether the objecting parties' conduct justified charging their shares. A beneficiary whose objections recover money for the whole estate has a basis to ask that the estate bear the cost.

Court Review of Attorney Fees Under SCPA 2110

SCPA 2110 gives the Surrogate authority to fix the compensation of any attorney for services rendered to a fiduciary or to a person interested in the estate. The court may act on its own or on petition by the attorney, the fiduciary or a beneficiary. In a formal accounting the attorney files an affidavit of legal services describing the work, the time and the fee, and the court passes on it whether or not anyone objects. The court can reduce a fee the executor has already agreed to and paid. If the executor paid an unreasonable fee without court approval, the executor, not the attorney, may be surcharged for the excess. That is one reason an experienced fiduciary wants the fee reviewed and approved rather than simply paid.

Attorney Fees Are Not the Executor's Commission

People often confuse the lawyer's fee with the executor's commission. They are separate, and both come from the estate.

Executor and administrator commissions are set by statute in SCPA 2307: 5 percent of the first $100,000, 4 percent of the next $200,000, 3 percent of the next $700,000, 2.5 percent of the next $4,000,000, and 2 percent above $5,000,000. The commission is computed on property received and paid out, half for receiving and half for paying out. Real property that passes directly to a named devisee is not commissionable because the executor never receives it, and assets passing outside the estate (joint accounts, beneficiary designations, trust assets) are not counted. Where there is more than one fiduciary, the number of full commissions depends on the size of the estate. Commissions are taxable income to the executor; an inheritance is not. A family-member executor who is also a major beneficiary often waives the commission for that reason.

One statutory trap sits at the intersection of the two fees. Under SCPA 2307-a, when the attorney who drafted the will, or an affiliated attorney, is named as executor, the testator must have signed a written acknowledgment that the attorney-executor will receive both commissions and legal fees. Without that disclosure, the attorney-executor's commission is cut in half. An attorney-executor is also not permitted to bill legal fees for work that is executorial in nature.

Court Costs and Other Expenses Separate From the Attorney

• Filing fee: set by SCPA 2402 on a sliding scale from $45 for estates under $10,000 to $1,250 for estates of $500,000 or more. The fee is based on the gross estate stated in the petition, so overstating the estate costs money.
• Certificates of Letters: $6 each; banks and brokerages each want one dated within the last six months.
• Process servers and publication: service of citations and, where a distributee cannot be found, publication in a newspaper the court designates.
• Bond premium: if the will does not waive the bond, or in administration where the court requires one under SCPA 801, the fiduciary pays a surety premium from estate funds.
• Guardian ad litem fee: fixed by the court and usually paid from the estate.
• Appraisals and accountants: date-of-death valuations of real property and closely held business interests, and tax return preparation.

When a Beneficiary Needs Separate Counsel

The executor's attorney represents the executor. That attorney owes no duty to the beneficiaries and will not advise them on whether to sign a waiver or whether the accounting is fair. A beneficiary should consider hiring their own lawyer when:

• They are asked to sign a waiver and consent to probate and do not understand what they are giving up. Signing waives the right to object to the will; it can be hard to undo.
• They are a distributee cut out of a will or left substantially less than intestacy would give them, and want to examine the attesting witnesses and the drafting attorney under SCPA 1404 before deciding whether to file objections.
• More than a year has passed since Letters issued and no accounting or distribution has been offered. A person interested may petition to compel an accounting under SCPA 2211.
• They suspect the executor is living in or renting out estate property, using estate funds, or selling assets to a relative. See beneficiary and executor conflicts.
• They are a distant relative who must prove kinship to inherit in an intestate estate.

How the Role Plays Out: Scenarios From New York Practice

The following are composite situations drawn from the kinds of matters a New York probate attorney handles. Names and details are generalized, and they describe the work involved rather than any particular result.

Kings County administration with no close relatives

A Brooklyn decedent dies without a will, unmarried and childless, survived by first cousins in New York, Puerto Rico and Poland. One cousin petitions for Letters of Administration. Because the distributees are collateral relatives, the court requires proof of kinship: birth, marriage and death records for two generations, an affidavit from a disinterested person who knew the family, and a hearing before a court attorney-referee. The court appoints a guardian ad litem under SCPA 403 to represent the interests of any unknown heirs. The attorney's work here is evidentiary: ordering vital records from three jurisdictions, obtaining certified translations, preparing the family tree exhibit, and presenting witnesses at the kinship hearing. Until kinship is established, funds for unproven heirs may be deposited with the Commissioner of Finance.

Nassau County estate held up by a creditor

An executor in Nassau obtains Letters Testamentary within two months because all distributees signed waivers. A hospital then files a claim for a six-figure balance, and a credit card issuer files another. The beneficiaries want their money. The attorney advises the executor that distributing before the seven-month period under SCPA 1802 has run exposes the executor personally to any valid claim that comes in later, reviews the hospital's billing against the decedent's insurance explanation of benefits, serves a formal notice of rejection on the portion that appears unsupported, and holds a reserve. The creditor then has a limited window to commence a proceeding or the claim is barred. The executor's protection comes from following the statute, which an unrepresented executor under family pressure often does not.

Manhattan co-op apartment in the estate

A New York County estate's principal asset is a cooperative apartment. The will leaves it to two children. Co-op shares and a proprietary lease are personal property, so the apartment passes through the executor rather than directly to the devisees, and the co-op board requires certified Letters, an estate tax closing letter or waiver, and board approval of any transfer or sale. The attorney coordinates the board package, the release of the estate tax lien on the shares, and the deed-equivalent transfer documents, and advises the children on whether one should buy out the other through the estate. See our pages on an inherited residence buyout.

Beneficiary compelling an accounting in Queens

A beneficiary receives nothing for eighteen months after her brother is appointed administrator. Informal requests for bank statements are ignored. The beneficiary's attorney files a petition to compel an accounting under SCPA 2211. The court orders the administrator to file a formal account within a set time. When the account is filed, the beneficiary's attorney reviews the schedules, serves objections to unexplained withdrawals and to the legal fees charged, and conducts an examination of the fiduciary under SCPA 2211(2). Whether the matter settles or is tried, the beneficiary's fees may be the subject of a request under SCPA 2110 and Matter of Hyde that the estate or the administrator's share bear the cost.

County Practice Notes

• E-filing: the Surrogate's Courts in the five New York City counties, Nassau, Suffolk and Westchester accept filings through NYSCEF, and represented parties are expected to use it in most proceedings. Unrepresented fiduciaries may still file on paper. E-filing shortens the time between submission and clerk review, and it lets counsel see when the file reaches the law department.
• Turnaround: an uncontested probate with signed waivers can move from filing to Letters in a matter of weeks in a lightly loaded county. Kings and Queens are among the busiest Surrogate's Courts in the state, and review times there run longer. New York County's probate department is often faster on clean files but strict on form. Any county will stop a file for an unsigned waiver, a missing distributee or an original will that shows staple holes suggesting pages were removed.
• Guardians ad litem: expect a GAL to be appointed under SCPA 403 whenever a distributee or beneficiary is a minor, is incapacitated, is incarcerated in some circumstances, or is unknown or cannot be located. The GAL's fee comes from the estate, and the GAL's report can delay a decree by several months.
• Help centers: New York City Surrogate's Courts and several suburban counties operate help desks for unrepresented litigants and publish DIY small estate forms online. Staff will explain the forms. They will not give legal advice.

Common Mistakes by Executors Who Proceed Without Counsel

• Distributing to beneficiaries before the seven-month creditor period has run, and later paying a valid claim personally.
• Omitting a distributee from the petition, usually a child from a prior relationship or a predeceased sibling's children, and having the decree challenged later.
• Allowing a relative to sign a waiver without an acknowledgment before a notary in the form the court requires, causing the file to be rejected.
• Selling or signing a contract on estate real property before Letters issue.
• Commingling estate funds with personal funds, which turns a routine accounting into a surcharge proceeding.
• Paying debts in the wrong order, for example paying credit cards before funeral and administration expenses that have priority under SCPA 1811.
• Missing the decedent's final income tax return or failing to obtain an estate tax waiver needed to transfer certain assets.
• Paying a lawyer a fee based on a percentage of the estate without asking what the work will involve, and then being surcharged when the court reduces it.

Procedure Pages on This Site

• Letters Testamentary: probating a will under SCPA Article 14.
• Letters of Administration: estates without a will under SCPA Article 10 and EPTL 4-1.1.
• Estate accountings: informal and judicial settlement.
• Will contests: capacity, undue influence and due execution.
• Removing an executor or administrator.
• Sample NYC probate timeline.
• Avoiding probate in New York.

Frequently Asked Questions

Is a lawyer required to probate a will in New York?

No statute requires one. An executor who is the sole beneficiary and has signed waivers from every distributee can file on their own. Once another person's interest is at stake and the matter is contested, the court will generally require counsel because a non-lawyer cannot represent others in court.

Does the executor's attorney represent the beneficiaries too?

No. The attorney represents the fiduciary. Beneficiaries who want advice on waivers, the accounting or the executor's conduct need their own counsel.

Can beneficiaries challenge the legal fees charged to the estate?

Yes. Under SCPA 2110 the Surrogate fixes attorney compensation, and any person interested can object to the fees shown on the accounting. The court applies the Freeman and Potts factors and may reduce fees already paid.

Will the attorney's fee come out of my inheritance?

Fees for the executor's attorney are an administration expense paid from the estate before distribution, so they reduce what every residuary beneficiary receives. Fees for your own attorney are generally your responsibility, unless the court directs otherwise under SCPA 2110.

Can the executor be paid and also hire a lawyer?

Yes. The executor's commission under SCPA 2307 and the attorney's fee are separate charges against the estate. If the attorney is also the executor, SCPA 2307-a disclosure rules apply and the attorney cannot bill legal fees for executorial work.

Can I choose any attorney, or must I use the one who drafted the will?

You may hire any attorney you choose. The drafting attorney has no right to be retained, though the attorney who holds the original will must produce it to the court.

About the Author

This page was written by Albert Goodwin, a New York attorney whose practice is concentrated in Surrogate's Court probate, administration, accounting and estate litigation in the New York City counties and on Long Island. Read more at about Albert Goodwin. Statutory references are to the Surrogate's Court Procedure Act and the Estates, Powers and Trusts Law as published by the New York State Senate. Last reviewed: [month year].

Speak With a New York Probate Attorney

If you have been named executor, need to administer an estate without a will, or are a beneficiary trying to decide whether you need your own lawyer, we can help you work out what the matter involves and what it will cost before you commit. Call 212-233-1233 or email [email protected].