What a New York Estate and Probate Attorney Does (and When You Need One)

Who the Lawyer Actually Represents

The first thing to understand is that an estate lawyer in New York represents a person, not the estate and not the family. If you are the executor, the lawyer represents you in your capacity as executor. The beneficiaries are not the lawyer's clients, even if they are your siblings and even if the estate pays the fee. If you are a beneficiary who wants independent advice, you need your own lawyer. This single fact explains most of the friction people encounter after a death, and it is the reason the firm's beneficiary-executor conflict page exists.

The First 30 Days After a Death in New York: A Checklist

Nothing in the SCPA requires you to file a petition within a set number of days. The pressure in the first month comes from practical deadlines, not statutory ones. In rough order:

1. Order certified death certificates: The funeral director usually orders them. For deaths in the five boroughs the issuing agency is the NYC Department of Health and Mental Hygiene; outside the city it is the local registrar. Order at least ten certified copies. The Surrogate's Court, each bank, each insurer, the DMV, and the pension administrator will each want an original.
2. Find the original will: Photocopies are not enough; probate of a copy is a separate and harder proceeding. Check the home, the drafting attorney's office, and the Surrogate's Court of the county of residence, since wills can be deposited with the court during life under SCPA 2507. If the will may be in a safe deposit box, SCPA 2003 lets you obtain a court order to open the box for the limited purpose of searching for a will, a burial plot deed, or life insurance policies.
3. Do not sell, transfer, or distribute anything: Before letters issue, a person named as executor may pay reasonable funeral expenses and take steps to preserve assets, and nothing more (EPTL 11-1.3). Selling a car, emptying an account, or handing out jewelry before letters is the most common mistake we see, and it creates problems in the later accounting.
4. Secure the residence: Change locks if keys are unaccounted for. If the decedent rented, notify the landlord in writing and keep paying rent while the lease is sorted out; succession rights in rent-regulated apartments are a separate issue. See access to an apartment after death and access to a house after death.
5. Keep insurance and the mortgage current: Homeowner's policies can lapse or be cancelled when a home is vacant. Keep receipts for anything you pay from your own funds; an executor is entitled to reimbursement from the estate for proper advances.
6. Stop using the decedent's cards and accounts: Banks freeze accounts when they learn of a death. Using a debit card after death, even for the funeral, produces entries that a beneficiary or the court will later ask you to explain.
7. Sort assets into "estate" and "non-estate": Joint accounts with right of survivorship, accounts with payable-on-death or transfer-on-death designations, retirement accounts and life insurance with named beneficiaries, and assets already in a trust pass outside the Surrogate's Court. They do not need letters. Accounts with no beneficiary and no joint owner are estate assets. See bank accounts with no beneficiary.
8. Identify the right proceeding: A will means probate (SCPA Article 14). No will means administration (SCPA Article 10). If the only estate assets are personal property worth $50,000 or less, a simplified voluntary administration under SCPA Article 13 may be enough, and it is a form-driven process you can often complete without counsel. If the decedent lived in another state but owned New York real property, you need ancillary letters here.
9. List every distributee with an address: A distributee is a person who would inherit under EPTL 4-1.1 if there were no will. You need this list even when there is a will, because every distributee must receive a citation or sign a waiver before the court will admit the will. If a sibling has died leaving children, those children are distributees. If the family tree is unclear, an affidavit of heirship may be required.
10. Collect the paper: Recent bank and brokerage statements, the deed, the last two income tax returns, loan statements, and any beneficiary designation forms. The petition requires an estimate of the gross estate, and the court filing fee is based on it.
11. Calendar the long deadlines now: A New York estate tax return (Form ET-706), if one is required, is due nine months after death. A surviving spouse's right of election must be exercised within six months after letters issue and in no event later than two years after death (EPTL 5-1.1-A(d)). Creditors have seven months from the issuance of letters to present claims before the fiduciary can distribute without personal liability (SCPA 1802).
12. Decide whether to hire a lawyer, and which kind: The sections below are meant to help with that decision.

What an Executor Can Do Alone and What Usually Needs Counsel

New York does not require an individual executor or administrator to have a lawyer. Corporations and LLCs must appear through counsel, but a person may represent himself or herself. The question is where self-representation stops being efficient.

One practical note. The Surrogate's Courts in the city each have a clerk's office that will review pro se papers, but the clerks cannot give legal advice and will not tell you what to put in the petition. A rejected filing in Kings or Queens County can cost weeks on the calendar. For a plain estate that is still an acceptable risk. For an estate with real property and a nine-month tax deadline, it usually is not.

Planner, Administration Lawyer, or Litigator: Choosing the Right One

Estate lawyers in New York tend to sort into three practices. Some firms, including ours, do all three, but you should still ask which one your matter needs, because the skills and the fee structures differ.

The planner

You need a planner if the person is still alive. Planners draft wills, revocable and irrevocable trusts, powers of attorney, and health care proxies. They also handle Medicaid asset protection and special needs planning. The work is office work, usually on a flat fee, and the test of a good planner is a document that survives later scrutiny. Under EPTL 3-2.1 a will must be signed at the end by the testator, declared to be the will, and signed by two attesting witnesses within 30 days of each other. Nearly every execution-based will contest traces back to a supervised signing that was not done properly.

The administration lawyer

You need an administration lawyer if someone has died and nobody is fighting. This lawyer prepares the petition, obtains waivers or serves citations, gets letters issued, handles the estate's tax filings with an accountant, sells the real property, and closes the estate. The work is procedural and county-specific. Each Surrogate's Court has its own forms preferences and calendar practice: New York County at 31 Chambers Street, Kings County at 2 Johnson Street in Brooklyn, Queens County at 88-11 Sutphin Boulevard in Jamaica, Bronx County at 851 Grand Concourse, and Richmond County at 18 Richmond Terrace. A lawyer who files in your county every week knows what that clerk's office sends back. For a sense of how long each stage takes, see a sample NYC probate timeline.

The litigator

You need a litigator if there is, or will be, an objection. That includes contesting a will, defending one, removing a fiduciary, compelling an accounting, objecting to an accounting, or recovering property someone took. Surrogate's Court litigation has its own procedures, such as SCPA 1404 examinations of the attesting witnesses and the drafting attorney before objections are even filed. It is billed hourly. Ask the litigator how many contested matters he or she has tried to decision before a Surrogate, and in which counties. If your dispute is already underway, start with inheritance disputes in NYC.

Questions to ask before you sign a retainer

• Who at the firm will do the work, and who will answer the phone?
• Is the fee flat or hourly, and what is included? Does "probate" in the retainer include selling the house and the tax returns, or only obtaining letters?
• How many matters has the firm filed in this county in the last year?
• If a dispute arises, does the same firm handle the litigation, or will I be referred out?
• Will the firm represent me alone, or does it propose to represent co-executors or several heirs together?

What the Engagement Looks Like Day to Day

For a typical uncontested probate, the work runs in this order.

• Engagement letter: New York requires a written letter of engagement for most matters where the fee is expected to be $3,000 or more (22 NYCRR Part 1215). It must state the scope of the work and the basis of the fee. Read the scope line carefully.
• Intake: You provide the original will, the death certificate, the family tree with addresses, and the asset list. The lawyer confirms domicile, which fixes the county, and confirms who the distributees are.
• Drafting the petition: The probate petition, the affidavit of the attesting witnesses, waivers and consents for each distributee, and the proposed decree. If a witness cannot be found, the lawyer arranges an alternate proof of execution.
• Citations: Any distributee who will not sign a waiver must be served with a citation, which sets a return date on which that person may appear and object. Service rules depend on where the person lives. Out-of-country service can add months.
• Filing: Most downstate Surrogate's Courts now accept or require electronic filing through NYSCEF. The court fee under SCPA 2402 is based on the gross estate; for an estate of $500,000 or more it is $1,250.
• Letters: Once the decree issues, the court issues certified letters testamentary. Each bank, broker, and title company wants a certificate dated within the last six months, so the lawyer orders several.
• Administration: EIN, estate account, marshaling assets, notice to creditors, the seven-month wait, sale of real property, tax returns, and interim distributions where safe.
• Closing: An informal accounting sent to each beneficiary with a receipt, release, and refunding agreement. If anyone refuses to sign, the lawyer files a judicial accounting instead.

You should expect to hear from the lawyer at each of these stages and to be asked for signatures at most of them. Silence for more than a few weeks is a reason to call.

A Worked Example: Executor Commissions on an $800,000 Estate

Executor and administrator commissions in New York are set by SCPA 2307. They are not negotiable, and a beneficiary cannot object to a commission correctly computed under the statute. The rates are:

• 5% on the first $100,000
• 4% on the next $200,000
• 3% on the next $700,000
• 2.5% on the next $4,000,000
• 2% on everything above $5,000,000

Half of each rate is earned for receiving the asset and half for paying it out. Assets that pass outside the estate (joint accounts, beneficiary-designated accounts, trust assets) are not included. Real property that is specifically devised to a named person and simply passes to that person is also excluded, because the executor neither receives nor pays out its value in cash.

Assume an estate consisting of a house the will leaves to "my children equally," which the executor sells for $500,000; a brokerage account of $250,000 with no beneficiary designation; and a checking account of $50,000. The house was not specifically devised to a named person and the executor sold it, so its proceeds count. The commissionable estate is $800,000.

• 5% of $100,000 = $5,000
• 4% of $200,000 = $8,000
• 3% of $500,000 = $15,000
• Total commission: $28,000

Four things follow from that figure.

• It is taxable income: The executor reports the $28,000 as ordinary income. An inheritance, by contrast, is not income to the recipient. An executor who is also the sole beneficiary almost always waives the commission for that reason. An executor who is one of three equal beneficiaries should do the arithmetic: a third of the commission comes out of his or her own share, and the whole commission is taxed.
• Co-executors can multiply it: On an estate of this size, SCPA 2307 allows each of two co-fiduciaries a full commission, subject to the statute's limits for larger numbers of fiduciaries. Naming two children as co-executors "to be fair" can cost the estate a second $28,000.
• An attorney-executor is treated differently: If the lawyer who drafted the will is also named executor, SCPA 2307-a requires a written disclosure signed by the testator explaining that the lawyer may collect both a legal fee and a commission. Without that disclosure, the attorney-executor is limited to half a commission.
• Legal fees are separate and are reviewed: The attorney's fee is an administration expense paid from the estate, not from the commission. The Surrogate has authority under SCPA 2110 to fix or reduce any attorney's fee charged to an estate, whether or not anyone objects. We do not publish fee figures here because the fee depends on what the engagement covers, and because this page is not a quote. The engagement letter is.

Three New York Rules People Get Wrong

Because this page is about choosing and working with a lawyer, it is worth stating three rules precisely, since misstatements of them circulate widely.

• The spousal elective share: Under EPTL 5-1.1-A, a surviving spouse may elect to take the greater of $50,000 or one-third of the net estate, and the net estate for this purpose includes testamentary substitutes such as joint accounts and revocable trust assets. The election must be made within six months after letters issue and no later than two years after death. The court may extend the six-month period for good cause, but not the two-year limit. A will cannot defeat this right; only a valid waiver, usually in a prenuptial or postnuptial agreement, can.
• The New York estate tax cliff: New York's basic exclusion amount is adjusted each year and is roughly $7.16 million for deaths in 2025. If the taxable estate exceeds the basic exclusion amount by more than 5%, the exclusion disappears entirely and the whole estate is taxed from the first dollar (Tax Law 952(c)). An estate slightly over the line can owe several hundred thousand dollars more than an estate slightly under it. Planners address this with gifts, charitable bequests, and formula clauses.
• The Medicaid look-back for home care: Nursing home (institutional) Medicaid has a 60-month look-back on transfers. Community Medicaid, which pays for home care, had no look-back for many years. The 2020 state budget enacted a 30-month look-back for community Medicaid, but its implementation has been postponed several times and, as of this writing, has not taken effect. Anyone planning transfers for home-care eligibility must confirm the current status before acting, because the rule can change with little notice. The firm's page on special needs trusts covers the trust options.

Frequently Asked Questions

Do I need a lawyer to be an executor in New York?

No. An individual may petition for letters and administer an estate without counsel. A corporate fiduciary must appear through a lawyer. In practice, most executors of estates that include real property or require a tax return hire counsel because a rejected filing or a missed tax deadline costs more than the fee. Executors are personally liable for losses caused by their own negligence, and "I did not know" is not a defense.

Can one lawyer represent all the heirs?

Usually not, and you should be wary of a lawyer who offers to. The estate lawyer represents the fiduciary. Under Rule 1.7 of the New York Rules of Professional Conduct, a lawyer may represent several people in the same matter only if their interests do not conflict and each gives informed consent confirmed in writing. Beneficiaries' interests often conflict with the executor's, and sometimes with each other's, on questions like whether to sell or keep the house, whether a commission should be taken, and whether a lifetime gift should be counted. If you are a beneficiary and want advice, retain your own lawyer. You are entitled to a copy of the will once it is filed; see whether beneficiaries are entitled to a copy of the will.

Who pays the lawyer?

The fee of the fiduciary's lawyer is an administration expense paid from estate funds before distributions, subject to the Surrogate's review under SCPA 2110. A person who objects to a will or to an accounting generally pays his or her own lawyer, although the court can direct the estate to pay in limited circumstances, and a successful objectant may recover costs. Contingency arrangements in will contests exist but are uncommon and must still satisfy the court's review of reasonableness.

Can I serve as executor if I live outside New York or outside the United States?

A United States citizen living in another state may serve, though the court may require a bond even if the will waives one. Under SCPA 707, a non-domiciliary alien may not serve alone; such a person may serve only together with a co-fiduciary who resides in New York. Persons convicted of a felony are also ineligible; see administrators and executors with felony convictions.

How soon can the estate pay the beneficiaries?

A fiduciary who waits seven months after letters issue before distributing is protected from personal liability for claims that were not presented in that window (SCPA 1802). Partial distributions earlier than that are possible when the estate is clearly solvent, but a careful executor keeps a reserve for taxes and expenses until the final accounting. Where an estate tax return is required, most executors wait for the closing letter before making the final distribution.

What if the executor is not doing anything?

A beneficiary can petition to compel the executor to account, and if the executor has neglected the estate, misapplied funds, or is otherwise unfit, can petition for removal under SCPA 711 and 719. See removing an executor or administrator and breach of fiduciary duty. If the goal is to keep assets out of the Surrogate's Court altogether in the next generation, see how to avoid probate in New York.

Talk to a New York Estate and Probate Attorney

If you are handling, or are a beneficiary of, a New York estate or trust, the Law Offices of Albert Goodwin can help. The firm has offices in Manhattan, Brooklyn, and Queens and appears in the Surrogate's Courts throughout New York City, Long Island, and Westchester for probate, administration, accountings, and estate litigation. Call 212-233-1233 or email [email protected]. More about the firm's principal attorney is on the about Albert Goodwin page.

Reviewed by Albert Goodwin, Esq., Law Offices of Albert Goodwin. This page is general information about New York law, not legal advice, and does not create an attorney-client relationship. Dollar thresholds, filing fees, and exclusion amounts change; confirm current figures with counsel before relying on them.