What Probate Attorneys Do in New York

When someone dies in New York, their estate usually must pass through the Surrogate's Court in the county where the decedent lived. A probate attorney guides the person responsible for the estate — the executor or administrator — through that court process, from the initial petition to the final distribution of assets. This page is an overview of what that work involves under New York law. It links to more detailed pages for each step.

This article was written by the Law Offices of Albert Goodwin, a New York estate litigation and probate firm. Albert Goodwin is admitted to practice in New York and has handled probate and administration matters in Surrogate's Courts across New York City, Long Island, and the surrounding counties.

Probate vs. Administration: Which Process Applies

New York uses two main procedures to settle a decedent's estate, and the correct one depends on whether there is a valid will.

• Probate (with a will). If the decedent left a will, it must be submitted to the Surrogate's Court to be proved valid. The person named in the will asks to be appointed as executor and to receive Letters Testamentary. This process is governed by Article 14 of the Surrogate's Court Procedure Act (SCPA).
• Administration (without a will). If 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 according to New York's intestacy rules in EPTL 4-1.1.

A third option, voluntary administration (a "small estate" proceeding under SCPA Article 13), is available when the decedent's personal property is valued at $50,000 or less, excluding real property. It is a simplified, lower-cost process.

Filing in the Correct Surrogate's Court

New York has a Surrogate's Court in each of the state's 62 counties. The petition must be filed in the county where the decedent was domiciled at death — for example, 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. A probate attorney confirms proper venue, prepares the county-specific forms, and follows the local practices of that particular court.

Preparing and Filing the Petition

The petition is the document that starts the proceeding. An attorney helps the proposed fiduciary gather the supporting documents the court requires, which commonly include:

• 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 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 statute under SCPA 2402 and are based on the value of the estate. The fees range from $45 for very small estates to $1,250 for estates of $500,000 or more. These are court fees only and are separate from attorney's fees. An attorney will advise on the applicable fee tier based on the estate's value.

Citations and Waivers

Anyone with a right to object — for example, 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. Obtaining signed waivers can shorten the timeline considerably; when waivers 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 estate assets, open an estate account, and manage the property. An attorney helps the fiduciary:

• locate and value assets, including real property, bank and brokerage accounts, and personal property;
• address valid creditor claims (creditors generally have seven months from the issuance of Letters to present claims under SCPA 1802 before a fiduciary may safely distribute);
• file the decedent's final income tax return and, where applicable, New York and federal estate tax returns; and
• distribute the remaining assets to the beneficiaries or distributees.

The Estate Accounting

Before closing the estate, the fiduciary typically prepares an accounting showing all money received and paid out. Beneficiaries may approve the accounting informally, or the court may settle it formally. A probate attorney prepares the accounting and defends it if a beneficiary objects.

Resolving Disputes in Surrogate's Court

Not every estate is straightforward. When conflicts arise, they are litigated in Surrogate's Court, and an attorney represents a party's interests. Common disputes include:

• Will contests — challenges to a will's validity based on lack of capacity, undue influence, fraud, or improper execution. See will contest representation.
• Contested accountings — objections alleging that a fiduciary mismanaged or misappropriated estate funds.
• Removal proceedings — petitions to remove an administrator or executor who has breached fiduciary duties.
• Turnover and discovery proceedings under SCPA 2103 to recover estate property held by others.

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, while 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 pass outside of Surrogate's Court entirely — for example, 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 Resources

• Letters Testamentary (probate with a will)
• Letters of Administration (no will)
• Estate administration overview
• Estate accountings
• Will contests
• Sample NYC probate timeline
• Avoiding probate in New York

Authoritative Sources

• New York State Surrogate's Courts
• Surrogate's Court Procedure Act (SCPA)

Speak With a New York Probate Attorney

If you need to probate a will, administer an estate without a will, or protect your interests as a beneficiary in New York, the Law Offices of Albert Goodwin can help. Call (212) 233-1233 to discuss your matter.

Frequently Asked Questions

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. Estates with $50,000 or less in personal property may qualify for simplified voluntary administration under SCPA Article 13.

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.

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.

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.