When someone dies in New York, their estate usually has to pass through the Surrogate’s Court of the county where they lived. A probate attorney guides the person responsible for the estate, the executor or administrator, through that court process from the first petition to the final distribution, and represents beneficiaries whose interests are affected along the way. This page is an overview of what that work involves under New York law, with links to more detailed pages on each step.
Probate or Administration: Which Process Applies
New York uses two main procedures to settle an estate, and which one applies depends on whether there is a valid will.
| Process | When it applies |
|---|---|
| Probate | The decedent left a will. It is submitted to the Surrogate’s Court to be proved valid under Article 14 of the Surrogate’s Court Procedure Act (SCPA), and the person named in the will asks to be appointed executor and to receive Letters Testamentary. |
| Administration | There is no will. The estate passes through administration under SCPA Article 10; a close relative petitions for Letters of Administration, and the estate is distributed under the intestacy rules in EPTL 4-1.1. |
| Voluntary administration | A small estate: personal property of $50,000 or less, excluding real property, under SCPA Article 13. A simplified, lower-cost process. |
Filing in the Correct Surrogate’s Court
Each of New York’s 62 counties has a Surrogate’s Court. The petition is filed in the county where the decedent was domiciled at death: the Kings County Surrogate’s Court for a Brooklyn resident, the New York County Surrogate’s Court for a Manhattan resident, or the Nassau or Suffolk County Surrogate’s Court on Long Island. The attorney confirms venue, prepares the county-specific forms, and follows the local practice of that court.
Preparing and Filing the Petition
The petition starts the proceeding. The attorney helps the proposed fiduciary assemble what the court requires: the original will, if there is one; a certified death certificate; the names, addresses and relationships of the decedent’s distributees (closest living relatives) and of the beneficiaries named in the will; an estimate of the estate’s assets; and any required affidavits of heirship or attesting-witness affidavits.
Identifying every distributee correctly is essential. New York requires that all distributees receive legal notice even when there is a will, because they have the right to object. Where heirs are distant or unknown, the court may require kinship proof establishing the family tree.
Court Filing Fees
Surrogate’s Court filing fees for probate and administration are set by SCPA 2402 and depend on the value of the estate, from $45 for very small estates to $1,250 for estates of $500,000 or more. These are court fees only, separate from attorney’s fees.
Citations and Waivers
Anyone with a right to object, which means the distributees who would inherit if the will were invalid, must either sign a waiver and consent or be served with a citation directing them to appear in court. Signed waivers shorten the timeline considerably; where they cannot be obtained, the attorney arranges proper service of the citation. Beneficiaries are also entitled to notice; see whether beneficiaries can get a copy of the will.
Marshaling Assets, Paying Creditors and Taxes
Once the court issues Letters, the fiduciary has authority to collect the estate’s assets, open an estate account and manage the property. The attorney helps the fiduciary locate and value the assets, including real property, bank and brokerage accounts and personal property; address valid creditor claims, bearing in mind that creditors generally have seven months from the issuance of Letters to present claims under SCPA 1802 before the fiduciary may safely distribute; file the decedent’s final income tax return and, where applicable, the New York and federal estate tax returns; and distribute what remains to the beneficiaries or distributees.
The Estate Accounting
Before the estate closes, the fiduciary typically prepares an accounting showing everything received and paid out. The beneficiaries may approve it informally, or the court may settle it formally. The attorney prepares the accounting and defends it if a beneficiary objects, or, for a beneficiary, reviews it and files objections where the numbers do not add up.
Disputes in Surrogate’s Court
Not every estate is straightforward. The common disputes are will contests, challenging a will’s validity for lack of capacity, undue influence, fraud or improper execution; contested accountings, alleging that a fiduciary mismanaged or misappropriated estate funds; proceedings to remove an administrator or executor who has breached fiduciary duties; and turnover and discovery proceedings under SCPA 2103 to recover estate property held by others. Each is litigated in the Surrogate’s Court, and the attorney represents the fiduciary or the objecting party.
How Long Probate Takes in New York
An uncontested estate with cooperative relatives and signed waivers may move through the Surrogate’s Court in a few months. Estates with citations, kinship issues or litigation can take a year or more. For a step-by-step illustration, see our sample NYC probate timeline.
When Probate Can Be Avoided
Some assets never go through the Surrogate’s Court: accounts with named beneficiaries, jointly held property, and assets in a living trust. Planning ahead can reduce or eliminate the need for probate; see how to avoid probate in New York.
Related New York Probate Pages
For more detail on each step, see our pages on Letters Testamentary (probate with a will), Letters of Administration (no will), the estate administration overview, estate accountings, will contests, the sample NYC probate timeline, and avoiding probate in New York. The statutes and the courts themselves are at the New York State Surrogate’s Courts site and the Surrogate’s Court Procedure Act.
Frequently Asked Questions
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Do all estates in New York have to go through probate?
No. Assets with named beneficiaries, jointly owned property and trust assets pass outside probate. An estate with $50,000 or less in personal property may qualify for simplified voluntary administration under SCPA Article 13.
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What is the difference between Letters Testamentary and Letters of Administration?
Letters Testamentary are issued to the executor named in a valid will. Letters of Administration are issued when there is no will, appointing a relative to administer the estate under New York’s intestacy rules.
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How much are New York Surrogate’s Court filing fees?
Under SCPA 2402, fees are based on estate value and range from $45 for very small estates up to $1,250 for estates valued at $500,000 or more. These are court fees, separate from attorney’s fees.
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How long do creditors have to make claims?
Creditors generally have seven months from the issuance of Letters to present claims before the fiduciary may safely distribute the estate’s assets.
Speak With a New York Probate Attorney
If you need to probate a will, administer an estate without one, or protect your interests as a beneficiary in a New York estate, call 212-233-1233 or email [email protected].
