Received a Notice of Probate in New York? What It Means, What It Isn't, and Your Rights Under SCPA § 1409

By Albert Goodwin, Esq., Law Offices of Albert Goodwin. New York estate and probate attorney practicing in the Surrogate's Courts, with offices in Manhattan, Brooklyn and Queens.

A notice of probate is a short form mailed to you by the person who filed a will with a New York Surrogate's Court. It tells you that the will names you in some way. It does not ask you to do anything. It does not set a deadline. It is not a summons, and ignoring it will not cost you your inheritance. This page explains what the notice is under Surrogate's Court Procedure Act (SCPA) § 1409, how to read each part of the official form, how it was served on you, and what you can and cannot do once you have it.

What SCPA § 1409 Requires

When a will is offered for probate in New York, the petitioner (called the proponent, and usually the executor named in the will) must give written notice of the proceeding to every person named in the will who is not already being served with a citation. SCPA § 1409 lists who gets the notice:

• Legatees: people left money or personal property.
• Devisees: people left real property.
• Trustees of any trust created under the will.
• Guardians named for minor children.
• Substitute or successor executors, trustees, or guardians who are not themselves petitioning.
• The New York Attorney General, when the will contains a gift for charitable, educational or religious purposes. Under EPTL § 8-1.1 the Attorney General represents the beneficiaries of charitable dispositions, so the Charities Bureau is notified in place of the charity's unnamed public.

The mechanics matter, because they explain why the notice looks and behaves the way it does:

• Service is by mail. The proponent or the proponent's attorney mails the notice to your last known address. No process server comes to your door, and no personal delivery is required.
• Timing. The notice must be mailed before the court issues letters testamentary to the executor.
• Proof of mailing. The proponent files an affidavit of mailing with the court stating who was mailed the notice, at what address, and on what date. The clerk checks for this affidavit before letters are released. You do not receive the affidavit; it stays in the court file.
• When the court can dispense with notice. If a named person's address cannot be found after diligent inquiry, or the court considers the gift too small to warrant notice, the court may excuse the proponent from mailing it.
• Failure to give notice does not undo probate. The statute provides that a defect in giving the notice does not affect the validity of the probate decree. The notice is informational. Your rights come from the will itself, and they exist whether or not the envelope reached you.

How to Read the Official Form (Form P-6)

New York uses a uniform Notice of Probate, designated Form P-6, available on the Surrogate's Court probate forms page. The copy mailed to you should contain the following parts. Here is what each one tells you and what to do with it.

• Caption and county. The top identifies the Surrogate's Court of a particular county. Probate is filed in the county where the decedent was domiciled at death. That county's record room is where the will is physically on file.
• File number. Every probate proceeding is assigned a file number. Write it down. You will need it to look up the case, request documents, or speak with the clerk.
• Decedent's name and domicile. Confirm this is the person you expected. Estates of people with common names are sometimes confused by families.
• Date of the will and any codicils. This line is more useful than it looks. If you know the decedent signed an earlier will, compare dates. A later will usually revokes earlier ones. If you believe an earlier will treated you better, that fact affects whether you have standing to object (discussed below).
• List of persons being notified and the nature of their interest. The form lists each person receiving notice and describes the interest: a specific bequest, a share of the residue, a nomination as successor trustee, and so on. Your entry tells you, in general terms, why you were named. It does not tell you the dollar value.
• Proponent and attorney information. The name of the person offering the will and the attorney's name, address and telephone number. This is who you contact for a copy of the will and for updates on the estate.
• Statement that no response is required. The form states that the recipients have an interest under the will and that no appearance in court is required. This is the single most misunderstood line, so it gets its own section below.

The notice does not come with a copy of the will. If you want to see what you were left, you have to ask for it or get it from the court. See the FAQ below for how.

There Is No Deadline on a Notice of Probate

A notice of probate contains no return date and no response period. You are not required to appear, file anything, sign anything, or call anyone. If you lose it, nothing happens. If you receive it a year after the will was admitted, nothing has been forfeited; your gift under the will is still yours, subject to debts and administration expenses.

Contrast this with a citation. A citation is court process issued under SCPA § 1403 to people who have a legal interest in defeating the will, chiefly the distributees (next of kin who would inherit if there were no will) who have not signed a waiver and consent. A citation carries a return date. A person cited must appear on that date or file objections on or before it, or by the date the court directs, or lose the right to object. If the document in your hand has a return date and a direction to show cause why the will should not be admitted, you have a citation, not a notice of probate, and you should speak with an attorney before that date.

The two documents can go to different people in the same estate:

• A beneficiary under the will who is not a distributee receives only the notice of probate.
• A distributee who is not a beneficiary receives only a citation (or signs a waiver instead).
• A person who is both a beneficiary and a distributee receives a citation, or signs a waiver, and may also appear on the notice of probate list.

Standing to Object: Why Most Notice Recipients Cannot Contest

SCPA § 1410 allows objections from any person whose interest in property or in the estate would be adversely affected by admitting the will to probate. The test is simple: would you take more if this will failed than you take under it?

For a distributee the answer is usually yes, because their alternative is an intestate share. For a notice recipient who is not a distributee, the answer is usually no. If the will fails, the estate passes by intestacy or under an earlier will, and a non-relative named only in the current will would get nothing. The notice recipient has no interest to protect by defeating the will, so no standing.

The exception is the earlier will. If you were a beneficiary under a prior will and that prior will gave you more than the current one, admitting the current will adversely affects you, and you may object. If the earlier will is on file with the court, SCPA § 1403 requires that you be cited, not merely notified. If it is not on file, bring it, or evidence of it, to an attorney promptly. For the grounds and procedure, see our page on contesting a will in New York.

What to Do After You Receive the Notice

1. Confirm the document. Check for a return date. If there is none, you have a notice of probate and nothing is due.
2. Record the file number and county. Everything else flows from these two facts.
3. Get the will. Request a copy from the proponent's attorney listed on the form, or obtain it from the Surrogate's Court record room using the file number. The will defines your interest; the notice only hints at it. Our page on whether beneficiaries are entitled to a copy of the will covers your options if the attorney does not respond.
4. Compare the will date with anything you know. If you recall an earlier will or a promise that differs from what you see, note it now while memories are fresh.
5. Send the attorney your current address and telephone number in writing. The affidavit of mailing locks in the address the proponent used. If you move during administration, the estate has no obligation to find you.
6. Keep every letter and email from the executor or the attorney. Distribution, tax forms (a Schedule K-1 if the estate earns income that is carried out to you), and any later accounting will all come through this channel.
7. Calendar the seven-month mark. Letters testamentary are issued after the will is admitted. Under SCPA § 1802 an executor who waits seven months from the issuance of letters before distributing is protected from unknown creditor claims, so most executors do not pay beneficiaries before then. If a year passes after letters and you have heard nothing, it is reasonable to ask for a status report in writing.
8. Consult an attorney if the executor stops communicating, sells estate property without explanation, or refuses to account. You do not need standing to contest the will to hold the executor to the will's terms.

Rights That Come From the Will, Not From the Notice

Once the will is admitted and letters issue, your status as a beneficiary gives you enforceable rights during administration. These are covered in depth on their own pages; short summaries follow so you know where to look.

• Information and accounting. A beneficiary may compel the executor to file a judicial accounting under SCPA Article 22 and may object to specific entries in it. See estate accountings in New York.
• Removal of the fiduciary. If the executor wastes assets, ignores court orders, or has a disqualifying conflict, a beneficiary may petition for removal under SCPA § 711 or § 719. See removing an executor or administrator.
• Timing of distribution. For how long a routine New York estate takes from filing to final distribution, see a sample NYC probate timeline, and for what the executor must do to obtain authority in the first place, see letters testamentary.

Frequently Asked Questions About the Notice of Probate in New York

Can I get the will from the Surrogate's Court directly, and how?

Yes. A will filed for probate becomes part of a public court file. Take the file number and decedent's name from the notice to the record room of the Surrogate's Court in the county shown in the caption and ask for a copy; the clerk charges a per-page fee. Several counties also post docket information through the court system's online Surrogate's Court records search, where you can confirm the file exists and see what has been filed, though you may still need to request the will itself from the clerk. If the attorney on the notice is responsive, asking them is faster.

What if I moved, or the notice went to the wrong address?

Nothing is lost. The proponent mails to your last known address and files an affidavit saying so; the court accepts that as compliance, and the statute says a defect in notice does not invalidate the probate decree. Your gift under the will survives. The practical risk is that the executor will not be able to find you when it is time to distribute, and unclaimed shares can eventually be deposited with the county commissioner of finance. Write to the attorney on the notice with your current address as soon as you learn of the estate.

Does receiving a notice mean my bequest is guaranteed?

No. The notice confirms only that a will naming you has been filed. The will still has to be admitted. Once it is, your gift is paid only if the estate has enough assets after funeral expenses, debts, taxes and administration costs. Specific bequests are paid before residuary shares, and if an asset specifically left to you was sold or no longer exists at death, the gift may fail under the doctrine of ademption. Reading the will and asking the executor about the estate's size answers most of these questions.

How long after the notice will I be paid?

The notice is mailed before letters issue, so you are at the beginning of the process. After the will is admitted and letters are granted, SCPA § 1802 gives an executor seven months during which creditors may present claims, and an executor who distributes after that window is protected from later claims. Most executors therefore pay specific bequests shortly after the seven months pass and residuary shares after the estate's debts, taxes and final expenses are settled, which in an uncomplicated New York estate often means nine to eighteen months from letters. Estates with real property to sell, estate tax returns, or litigation take longer.

What if I am both a beneficiary and a distributee?

Then you are a necessary party to the proceeding and the proponent must either obtain your signed waiver and consent or serve you with a citation. You may also appear on the notice of probate list because you are a legatee. Before signing a waiver, understand that you are giving up your right to object to the will and to the executor's appointment. Compare what the will gives you to your intestate share under EPTL § 4-1.1; if the will gives you less, you have standing to object and should get advice before you sign.

Questions About a Notice You Received

If you have received a notice of probate or a citation from a New York Surrogate's Court and want to know what it means for you, the Law Offices of Albert Goodwin can help. We handle probate and estate administration matters in the Surrogate's Courts of New York City, Brooklyn and Queens. Call 212-233-1233 or email [email protected].