What If the Executor Does Not Probate the Will in New York? How to Compel Probate or File It Yourself

A will in New York does nothing on its own. Until someone files it with the Surrogate's Court and the court admits it to probate, no one has authority over the estate, no bank will release funds, and no deed can be signed. The person named as executor is usually the one expected to file. If that person holds the original will and does nothing, the estate stalls.

The good news is that New York law does not leave beneficiaries waiting on the named executor. Two provisions of the Surrogate's Court Procedure Act (SCPA) do most of the work:

• SCPA 1402: any person interested in the estate may file the probate petition. You do not need the executor's permission or participation.
• SCPA 1401: if the executor is holding the original will and will not hand it over, the court can order that person to appear, be examined under oath, and produce it.

This page covers the situation where the nominated executor has not yet qualified and the will is sitting unfiled. If the executor already received letters testamentary and is now neglecting the estate, that is a different proceeding. See our page on removing an executor or administrator.

Nominated Is Not Appointed

A person named in a will has no authority until the Surrogate's Court issues letters testamentary. Before that, the nominee is simply a private individual holding a document that belongs, in a practical sense, to the estate. The nominee cannot sell property, cannot close accounts, and cannot decide that probate is unnecessary. The nominee also has no right to keep the will from the court or from the people named in it.

New York sets no statutory deadline for offering a will for probate. That does not help a reluctant executor much. It only means that the clock is controlled by whoever acts first. If the nominee will not act, you can.

Option 1: Petition for Probate Yourself Under SCPA 1402

Many beneficiaries assume they must force the executor to file. Often the faster route is to file the probate petition in your own name and let the court deal with the nominee.

Who may file

SCPA 1402 allows a probate petition to be filed by, among others:

• a person named in the will as executor, legatee, devisee, guardian, or testamentary trustee;
• a creditor of the decedent;
• any other person interested in the estate, which includes distributees (the people who would inherit under intestacy);
• a party to a lawsuit in which the decedent would have been a party.

If you are a beneficiary under the will, you qualify. If you are a child or spouse who would take under intestacy, you qualify even if the will leaves you nothing.

What happens to the nominated executor

When someone other than the named executor files, the court does not simply skip the nominee. The nominee is cited and given the chance to come forward and qualify. Under SCPA 1416, the court can issue process directing a nominated executor who has neither qualified nor renounced to show cause why he or she should not be deemed to have renounced. A nominee who ignores the citation, or who appears and declines, is treated as having renounced the appointment.

Once the nominee is out of the way, letters issue in this order:

1. to any alternate or successor executor named in the will who is eligible and willing to serve;
2. if there is none, to an administrator c.t.a. (with the will annexed) under SCPA 1418, which gives priority to the sole beneficiary, then to residuary beneficiaries, then to other beneficiaries, and so on.

The petitioner frequently ends up as the fiduciary. The estate is then administered according to the will's terms, exactly as if the named executor had served.

What the probate petition must contain

The petition is filed in the Surrogate's Court of the county where the decedent was domiciled at death (SCPA 205). The petition and supporting papers generally need to state:

• the decedent's name, date of death, and domicile;
• the date of the will and any codicils, and who has the original;
• the names and addresses of all distributees, who must be cited or must sign waivers under SCPA 1403;
• the names of all beneficiaries under the will and anyone adversely affected by a later codicil or a prior will;
• the approximate value of the probate estate, which sets the filing fee;
• your interest in the estate and the relief you want, including who should receive letters.

You will also need a certified death certificate and proof of due execution, usually the self-proving affidavit of the attesting witnesses under SCPA 1406 or their testimony under SCPA 1404.

The problem: you need the original will

Probate requires the original instrument. If the nominated executor is holding it and will not turn it over, you combine the probate petition with a proceeding under SCPA 1401, described next. The two proceedings are often brought together in a single set of papers.

Option 2: Compel Production of the Will Under SCPA 1401

SCPA 1401 is the remedy for a will that is being withheld. The proceeding may be brought by a person interested in the estate, including a beneficiary, a distributee, or a creditor.

Step by step

1. Petition and affidavit. You file a petition identifying the decedent, your interest in the estate, the person you believe has the will, and the facts supporting that belief. The affidavit should be specific: who told you the will exists, when you saw it or a copy, which attorney drafted it, and what the custodian has said or refused to say.
2. Process issues. The court issues a citation or order directing the alleged custodian to attend on a return date, to be examined under oath about the will, and to produce it.
3. Service. Process is served under SCPA 307. Personal delivery inside New York must be made at least 10 days before the return date. Service on someone outside the state must be made at least 20 days before. An out-of-state executor cannot avoid the proceeding by staying away.
4. Return date and examination. On the return date the custodian either produces the will or is examined under oath about its whereabouts. The examination is a sworn record. A custodian who says one thing to the family and another thing to the court has a problem.
5. Order to produce. If the examination shows the respondent has the will or controls it, the court orders it deposited with the court. The will is then on file and available for probate on anyone's petition under SCPA 1402.
6. Contempt. A custodian who disobeys the order is subject to the Surrogate's contempt powers under SCPA 606 and Judiciary Law § 753, which can include fines and commitment until the person complies.

If the executor says the will is lost or destroyed

Sometimes the response to a 1401 citation is "I don't have it anymore." That answer does not end the matter. New York allows a lost or destroyed will to be admitted to probate under SCPA 1407 if the petitioner establishes:

1. that the will has not been revoked;
2. that it was executed in the manner required by law, proved the same way as any other will; and
3. all of its provisions, either through a copy or draft proved to be true and complete, or through the testimony of at least two credible witnesses to its contents.

The main obstacle is the presumption of revocation. When a will was last known to be in the testator's own possession and cannot be found after death, New York courts presume the testator destroyed it with the intent to revoke (see Matter of Fox, 9 N.Y.2d 400 (1961)). That presumption can be rebutted. It also may not arise at all if the evidence shows the will was last in the hands of the nominated executor, the drafting attorney, or a third party rather than the testator. The sworn 1401 examination is often where that evidence comes from. The drafting attorney's file, a conformed copy, and the attesting witnesses' recollection are the usual proof.

If a lost will cannot be proved, the estate passes under the intestacy statute, EPTL 4-1.1. An executor who stands to gain under intestacy has an obvious motive to let a will disappear. That is exactly why the 1401 examination and the 1407 proceeding exist.

When No One Will Serve

Occasionally the named executor refuses, the alternates refuse, and none of the beneficiaries wants the job. The estate still has to be administered.

• Public Administrator. Each county within New York City, and several suburban counties, has a Public Administrator who serves as fiduciary when no eligible person interested in the estate will act (SCPA Article 11; SCPA Article 12 covers counties where the county treasurer fills that role). The Public Administrator can receive letters of administration c.t.a. and will administer the estate under the will's terms, charging statutory commissions and counsel fees against the estate.
• Small estates. If the decedent's personal property, after exempt items under EPTL 5-3.1, is worth $50,000 or less, and no real property passes under the will, the estate may qualify for voluntary administration under SCPA Article 13. The will is filed along with a short affidavit, and a voluntary administrator collects and distributes the assets without formal probate. Article 13 gives priority to the named executor, but a beneficiary may serve if the executor does not act. This is the answer to the executor who says probate "isn't worth it" for a small estate.

Common Excuses From a Reluctant Executor, and the Answers

• "Everything passed outside the will." Joint accounts, beneficiary-designated accounts, and jointly held real property do pass outside probate. If there is any asset in the decedent's sole name, including a car, a refund, a lawsuit, or a bank account without a designation, letters are needed to collect it. The will should still be filed. See our page on a bank account with no beneficiary after death.
• "I have time." There is no waiting period before a probate petition can be filed. The 15-day language in SCPA 1416 concerns a nominee's qualification after the will is admitted; it is not a right to delay filing. A nominee who has not filed within a reasonable time after the death certificate is available has no statutory basis to object when someone else does.
• "I live out of state." A United States citizen or resident alien domiciled in another state may serve as a New York executor, provided he or she designates the clerk of the court for service of process under SCPA 708. Distance is a reason to hire a lawyer, not a reason to sit on the will. A non-domiciliary alien is ineligible under SCPA 707 unless serving with a New York co-fiduciary.
• "The estate is too small." See SCPA Article 13 above.
• "I'm handling the house." An executor living in estate real property without letters has no authority to be there in that capacity and no authority to exclude others. See our pages on a beneficiary living in the inherited house and a brother living rent-free in the inherited house.

New York Procedure: Fees, Documents, and Timing

Filing fees under SCPA 2402

The fee for a probate petition is set on a sliding scale by the gross value of the probate estate (SCPA 2402(7)):

• less than $10,000: $45
• $10,000 to under $20,000: $75
• $20,000 to under $50,000: $215
• $50,000 to under $100,000: $280
• $100,000 to under $250,000: $420
• $250,000 to under $500,000: $625
• $500,000 or more: $1,250

A petition to compel production of a will under SCPA 1401 carries its own filing fee under SCPA 2402. Certificates of letters cost $6 each. Confirm current amounts with the clerk of the particular county, since the statute is amended from time to time.

Document checklist for the petitioner

• certified death certificate;
• the original will and any codicils, or a copy plus specific facts about who holds the original;
• a family tree listing every distributee with current addresses, supported if needed by an affidavit of heirship;
• names and addresses of all beneficiaries under the will;
• contact information for the attesting witnesses and the drafting attorney;
• a list of probate assets with approximate values;
• any written communications with the nominated executor about the will.

How long until the return date

Timing varies by county and by how quickly the petition clears the clerk's review. In our experience, the New York City Surrogate's Courts (New York, Kings, Queens, Bronx, and Richmond counties) commonly set citation return dates one to three months after a petition is accepted for filing, with Kings and Queens tending toward the longer end. Nassau, Suffolk, and Westchester often move somewhat faster. Deficiencies in the papers, missing distributee addresses, or a need for service by publication add weeks. If the nominated executor appears on the return date and asks for time to qualify, the court decides whether to allow it. For a fuller picture of what follows probate, see our sample NYC probate timeline.

Three Situations We See

The following are composite illustrations drawn from the kinds of matters that come through a Surrogate's Court practice. They are not descriptions of specific cases or results. How any matter ends depends on its own facts.

The sibling who does better under intestacy

A mother's will leaves her Queens co-op to the daughter who cared for her and divides the rest equally among four children. The son named as executor has the original will. Under intestacy he would receive a quarter of everything, including the co-op. He tells his siblings there is "no will" or that he "can't find it." The daughter has a conformed copy from the drafting attorney. The applicable tools are a 1401 petition to examine the son under oath about the original, a 1402 probate petition in the daughter's own name, and, if the original is never produced, a 1407 lost-will petition supported by the attorney's file and the attesting witnesses. Because the will was last in the son's hands rather than the mother's, the presumption of revocation is contestable.

The out-of-state executor who never answers

A Brooklyn decedent names a nephew in Arizona as executor. The nephew acknowledged receiving the original will after the funeral and has not responded to calls or letters for a year. A tax lien is accruing on the house. A beneficiary files a probate petition under SCPA 1402 asking for letters c.t.a., together with a 1401 petition directed at the nephew. Service outside New York requires at least 20 days before the return date under SCPA 307. If the nephew does not appear, the court can treat him as having renounced, and letters can issue to the petitioner or another eligible beneficiary.

The executor living rent-free

A father's will names his eldest son executor and divides the estate equally among three children. The son has moved into the Staten Island house and is paying no rent, no taxes, and no insurance. He has the will but says he is "not ready" to file. The other two children can petition for probate under SCPA 1402 and ask that letters issue to one of them. Once letters issue, the fiduciary can demand use and occupancy, seek the son's removal from the property, and account for the carrying costs he caused the estate to absorb. Delay by the nominee is not a defense to any of that.

Related Problems Covered Elsewhere

This page is about an unfiled will and a nominee who has not qualified. Related issues have their own pages:

• A nominee who wants to decline cleanly, or an executor with letters who wants to step down, follows the renunciation and resignation procedures described on our letters testamentary page.
• An executor who has letters and is wasting or neglecting the estate can be removed for cause under SCPA 711 or suspended under SCPA 719. See removing an estate fiduciary and breach of fiduciary duty.
• A fiduciary who will not explain what happened to estate money can be compelled to account. See our estate accountings page.
• Executor commissions are fixed by SCPA 2307 and are not negotiable; a nominee worried about compensation can find the schedule on our letters testamentary page.
• If a fiduciary's letters are revoked after probate, the replacement is an administrator d.b.n., not c.t.a.
• If the executor is holding estate property rather than the will, the remedy is a discovery and turnover proceeding under SCPA 2103.
• Disputes between an executor and beneficiaries that fall short of removal are discussed on beneficiary-executor conflict.

Frequently Asked Questions

Is there a deadline to probate a will in New York?

No. New York has no statute of limitations for offering a will for probate. The practical risks of delay are that attesting witnesses die or disappear, assets deteriorate, creditors' claims and estate claims run up against their own limitation periods, and a distributee may petition for letters of administration as if there were no will. Any person interested may file at any time under SCPA 1402.

Can an executor be sued for not probating the will?

Before letters issue, the nominee owes no fiduciary duty as executor, so a damages claim for simple delay is difficult. The remedies are procedural: compel production under SCPA 1401 and petition for probate under SCPA 1402. A nominee who conceals or destroys a will exposes himself to a lost-will proceeding and to the court's contempt powers. After letters issue, an executor who causes loss to the estate can be surcharged and removed. See breach of fiduciary duty.

Does the executor have to show me the will?

Before probate, there is no statute requiring a nominee to hand a copy to beneficiaries on request. There is a statute allowing the court to order the will produced, which is SCPA 1401. Once the will is filed with the Surrogate's Court it becomes a public court record, and anyone can obtain a copy from the clerk. See are beneficiaries entitled to a copy of the will.

Who pays the lawyer in a compel-probate proceeding?

Each party ordinarily pays his or her own attorney. The court has discretion under SCPA 2302 to award costs against a party. Where a petitioner's efforts bring the will into court and benefit the estate as a whole, the petitioner may apply to have reasonable legal fees allowed from the estate, but that is a discretionary award, not an entitlement. Once the petitioner receives letters, the estate pays the fiduciary's counsel in the ordinary course.

Can I file for probate without the original will?

You can file the petition and ask the court to compel the custodian to produce the original under SCPA 1401. If the original cannot be located, you can seek to probate a copy under SCPA 1407 by proving due execution, non-revocation, and the will's contents through a true copy or two credible witnesses.

What if the executor is also hiding estate assets?

That calls for a separate proceeding under SCPA 2103 once a fiduciary is appointed. See our page on discovery and turnover proceedings.

Speak With a New York Surrogate's Court Attorney

If a named executor is holding a will and will not file it, you have a choice between compelling production under SCPA 1401 and petitioning for probate yourself under SCPA 1402. Often the right answer is both at once. The Law Offices of Albert Goodwin handles these proceedings in the Surrogate's Courts of New York City, Long Island, and Westchester. Call (212) 233-1233 to discuss your situation.

This article is for general informational purposes only and is not legal advice. Reading it does not create an attorney-client relationship. The illustrations above are composites and do not describe actual cases or results. For guidance on your specific situation, consult a licensed New York attorney. Statutory references are to the New York Surrogate's Court Procedure Act (SCPA), Estates, Powers and Trusts Law (EPTL), and Judiciary Law.