What Happens in Surrogate's Court: New York Probate, Step by Step

By Albert Goodwin, Esq., Law Offices of Albert Goodwin. This page describes New York practice under the Surrogate's Court Procedure Act (SCPA), the Estates, Powers and Trusts Law (EPTL), and the Uniform Rules for Surrogate's Court (22 NYCRR Part 207).

In New York, probate court is called the Surrogate's Court. It is a constitutional court (N.Y. Const. art. VI, § 12) with one Surrogate's Court in each of the state's 62 counties, each headed by an elected judge called the Surrogate. The court admits wills to probate, appoints administrators when there is no will, supervises fiduciaries through accountings, and hears disputes over estate property. This page is not a definition of probate. For that, see our pages on estate administration and which assets avoid probate in New York. This page describes what a petitioner, a beneficiary, or a cited relative actually experiences from the day papers are filed to the day letters are handed over.

Which Surrogate's Court Hears the Case

Venue is set by SCPA § 205. A proceeding for a New York domiciliary is filed in the county where the decedent lived at death, not where the heirs live and not where the attorney's office is. A decedent who lived on the Upper West Side is probated in New York County even if every beneficiary lives in New Jersey or Florida. For a decedent who lived outside New York but left property here, see ancillary letters.

Each of the five boroughs has its own Surrogate's Court, its own clerk's office, and its own habits:

• New York County (Manhattan): 31 Chambers Street, New York, NY 10007. The busiest Surrogate's Court in the state, with a separate Probate Department that reviews every probate file before anything is calendared.
• Kings County (Brooklyn): 2 Johnson Street, Brooklyn, NY 11201.
• Queens County: 88-11 Sutphin Boulevard, Jamaica, NY 11435.
• Bronx County: 851 Grand Concourse, Bronx, NY 10451.
• Richmond County (Staten Island): 18 Richmond Terrace, Staten Island, NY 10301.

The statutes are the same in all five. The clerks are not. A file that moves in Queens in a few weeks can sit in Manhattan for months because of volume alone.

Step 1: Filing the Petition

A probate proceeding begins when the nominated executor, called the proponent, files a probate petition (official form P-1) with the Surrogate's Court. The filing package normally contains:

• the original will, and any codicils;
• a certified copy of the death certificate;
• the probate petition, listing every distributee (the people who would inherit if there were no will) and every beneficiary named in the will, with addresses;
• the attesting witnesses' affidavits, either the self-proving affidavit attached to the will (SCPA § 1406) or affidavits obtained after death;
• signed waivers of process and consents to probate from distributees who do not object;
• a proposed citation for anyone who has not signed a waiver;
• an affidavit of heirship from a disinterested person when the distributees are more remote than a spouse, children, or parents (22 NYCRR 207.16); see affidavit of heirship;
• the filing fee under SCPA § 2402, which is based on the gross value of the estate and currently runs from $45 for estates under $10,000 to $1,250 for estates over $500,000.

In the New York City courts, attorneys file through NYSCEF, the state's electronic filing system, under 22 NYCRR 207.4-a. E-filing does not replace the paper will. The original will must still be delivered to the clerk, and the court keeps it. Once filed, the will is a public record that anyone can read at the courthouse.

The probate clerk reads the whole file before anything happens. The clerk is checking that every distributee is accounted for, that the addresses are complete, that the values stated in the petition match the fee paid, and that the will on its face appears to have been executed properly. Common reasons a file comes back with a deficiency notice:

• the name on the death certificate does not match the name on the will, and no affidavit explains the difference;
• staple holes or removed staples on the will with no affidavit explaining why it was unstapled;
• a distributee is listed as "address unknown" without an affidavit of due diligence describing the search;
• a witness affidavit is missing and the petition does not explain why the witness cannot be found;
• the petition omits a distributee the clerk can see from the family tree affidavit, such as the child of a predeceased sibling.

A clean file in Queens or Staten Island may clear review within a few weeks. In Manhattan the Probate Department review alone can take longer than that, and nothing is calendared until it is done.

Step 2: Waivers, Notice of Probate, and the Citation

Under SCPA § 1403, process must issue to every distributee, to any person named as executor in a later will on file, and to certain other parties. A distributee who has no objection signs a waiver of process and consent to probate before a notary. A distributee who has signed a waiver is never cited and never has to come to court.

Everyone else is served with a citation. A citation is a one-page court document, signed by the clerk and stamped with the court seal. It states the name of the court, the decedent's name, the names of the people cited, what the petitioner is asking for (that the will be admitted to probate and letters testamentary issue), and the return date, with a time, usually in the morning. The citation says in plain terms that the cited person does not need to appear unless he or she objects. The contents are prescribed by SCPA § 306.

Service is governed by SCPA § 307. Within New York, the citation is handed to the person at least ten days before the return date. Outside New York but within the United States, it may be mailed, and the mailing must be at least twenty days before the return date. Outside the United States, thirty days. If a distributee cannot be found after a diligent search, the court can authorize service by publication in a newspaper (SCPA § 308 and § 309), which adds roughly a month or more. The petitioner files an affidavit of service before the return date. Without it, the clerk will not let the matter go forward.

Beneficiaries named in the will who are not distributees do not get a citation. They receive a notice of probate under SCPA § 1409, mailed by the petitioner's attorney, telling them the will has been offered. They have no right to object, so they have no return date to attend. The Attorney General's Charities Bureau receives notice when a charity benefits, and the county Public Administrator is cited when distributees are unknown or cannot be located.

Step 3: What Happens on the Return Date

The return date is the day listed on the citation. For most families it is the only day with any resemblance to a court hearing, and for most of them nothing happens.

In the New York City courts the probate calendar is called in the morning. The Surrogate ordinarily does not take the bench for an uncontested probate calendar. The clerk or a court attorney calls each case by name and file number. The petitioner's attorney answers. The attorney then states whether all citations have been served and whether anyone has appeared. If no cited party is present and no one has filed objections, the clerk marks the matter as no appearance and no objection. That takes under a minute. The file goes back to the probate department to be prepared for decree. The petitioner does not have to be there. Cited relatives who have no objection do not have to be there either. An entire morning calendar of dozens of estates may be finished in an hour.

Some Surrogate's Courts in the city now permit virtual appearances by video for calendar calls. Each court sets its own practice, and the citation or the court's website will say whether an in-person appearance is required.

If a cited party does appear, that person tells the clerk or court attorney that he or she wishes to be heard. The court attorney usually brings the parties to a conference room off the courtroom. The appearing party is not expected to prove anything that day. He or she will be asked whether objections will be filed, and will usually be given time to conduct examinations under SCPA § 1404 first. The matter is adjourned to a control date several weeks or months later. The will cannot be admitted while that adjournment is open.

Step 4: When Someone Objects

A person who has appeared on the return date has a right to examine the attesting witnesses and the attorney who drafted the will before deciding whether to file objections. These are the SCPA § 1404 examinations. They are depositions, taken under oath before a court reporter, usually at a law office, and the cost of producing the witnesses falls on the proponent. The questions are limited by 22 NYCRR 207.27 to the period beginning three years before the will was signed and ending two years after it was signed or on the date of death, whichever is shorter. The examining party may also demand the drafting attorney's file and the decedent's medical records for that window.

Standing to object is governed by SCPA § 1410. Only a person whose financial interest would be hurt by admitting the will may object, which in practice means a distributee who takes less under the will than under intestacy, or a beneficiary under an earlier will who was cut out. Objections are filed in writing under SCPA § 1411, on or before the return date or within ten days after the 1404 examinations are completed, unless the court extends the time. The grounds are limited: improper execution, lack of testamentary capacity, undue influence, fraud, or forgery. Disliking the will's terms is not a ground.

Once objections are filed, the proceeding becomes a contested matter with discovery under the CPLR, depositions of the parties, and motion practice. Either side may demand a jury trial under SCPA § 502. Before trial, the court will schedule conferences before the court attorney, and the Surrogate's Courts push hard for settlement. During the contest, the nominated executor may apply for preliminary letters testamentary under SCPA § 1412. Preliminary letters allow the executor to collect assets, pay bills, and protect real property, but not to distribute to beneficiaries. A full description of the contest process is on our will contest page.

Step 5: The Decree and Issuance of Letters

Even when no one objects, the court does not admit a will automatically. SCPA § 1408 requires the Surrogate to be satisfied that the will was properly executed and that the testator was competent and acting freely. In an uncontested case the court satisfies itself from the papers: the witness affidavits, the face of the will, and the petition. If something in the file troubles the clerk or the court attorney, the proponent may be asked for a supplemental affidavit or, less often, to produce a witness for a brief examination.

When the file is complete, the Surrogate signs a decree admitting the will to probate. The decree recites that jurisdiction was obtained over all necessary parties and that the will is the last will of the decedent. The decree does not itself give the executor power. Power comes from the letters.

To obtain letters testamentary (SCPA § 1414), the executor must qualify: sign an oath, sign a designation of the clerk as agent for service of process (SCPA § 708), and post a bond unless the will dispenses with one, which most attorney-drafted New York wills do. The clerk then issues letters testamentary. The letters are a short document bearing the court seal stating that the named person has been appointed executor and is authorized to act. Banks and brokerage firms will not act on a photocopy; they want a certificate of letters, a certified copy issued by the clerk for a small fee per copy, dated within the past six months. The executor orders several certificates on the day letters issue.

Letters testamentary are not the only letters the court issues. When the named executor cannot or will not serve, the court issues letters of administration c.t.a.; when a fiduciary stops serving mid-administration, the successor receives letters d.b.n.; and when there is no will at all, the court issues letters of administration. For the executor's side of the process, see letters testamentary.

What Changes When There Is No Will

Without a will, the proceeding is an administration proceeding under SCPA Article 10 rather than a probate proceeding. The filing, citation, and return date mechanics are similar. The differences are in who is cited and what the court must decide. Under SCPA § 1001, the surviving spouse has first priority to serve as administrator, then children, then grandchildren, and so on. Anyone with equal or higher priority who has not signed a waiver must be cited. When a second spouse and children of a first marriage each petition for the same estate, the court must decide who is appointed before any letters issue, and the return date becomes a contested appearance much like a will contest. See administration proceedings and letters of administration.

When the decedent left no spouse, children, parents, or siblings, and the heirs are cousins or more remote relatives, the court will not distribute the estate on the petitioner's word alone. It holds a kinship hearing, usually at the accounting stage and often in an estate being administered by the county Public Administrator. The Surrogate refers the hearing to a court attorney-referee. The claimants must prove two things: that they are related to the decedent in the degree claimed, and that no one more closely related survived. The second part, closing the class, is harder. It is proven with certified birth, marriage, and death records, census records, immigration records, and the testimony of a disinterested witness who knew the family, frequently with a professional genealogist. A guardian ad litem appointed under SCPA § 403 represents unknown heirs and cross-examines the claimants' witnesses. The referee issues a report, and the Surrogate confirms or rejects it. If kinship is not proven, the funds are deposited with the New York City Commissioner of Finance under SCPA § 2222 and may be claimed later by anyone who can establish the relationship.

Small Estates Skip Most of This

If the decedent's personal property is worth $50,000 or less, the estate may qualify for voluntary administration under SCPA Article 13 (SCPA § 1301). The threshold counts personal property only, such as bank accounts, vehicles, and securities. Real property is excluded, and an estate that owns a house or a co-op cannot pass by voluntary administration regardless of value. A voluntary administrator files a short affidavit with the clerk, pays a $1 fee, and receives a certificate for each asset. There is no citation, no return date, and no decree. The Surrogate's Court clerks in each borough assist unrepresented voluntary administrators with the forms.

How Long Each Stage Takes

A detailed month-by-month example is on our sample NYC probate timeline. In broad terms, from our experience across the five boroughs: an uncontested probate in which every distributee signs a waiver can go from filing to letters in roughly two to four months. A case that requires a citation and a return date, or that is filed in New York County or Kings County, more often takes four to eight months. Service by publication, a guardian ad litem, or a kinship hearing each add months. A contested probate with SCPA § 1404 examinations and filed objections commonly runs a year or more, and most such cases settle before trial because the estate pays the fiduciary's legal fees and each side pays its own.

How We Can Help

The Law Offices of Albert Goodwin represents executors, administrators, beneficiaries, and cited distributees in the Surrogate's Courts of New York, Kings, Queens, Bronx, and Richmond Counties, and in the surrounding counties. We prepare and file probate and administration petitions, handle citation service, appear on return dates, conduct and defend SCPA § 1404 examinations, and try contested matters when settlement fails. If you have received a citation, have been asked to sign a waiver, or need to start a proceeding, we can explain what the document means and what will happen on the date it names. Call 212-233-1233 or email [email protected]. We have offices in Manhattan, Brooklyn, and Queens.