What Is an Estate in New York? Probate, Non-Probate, Small and Taxable Estates

Written by Albert Goodwin, Esq., Law Offices of Albert Goodwin, with offices in Manhattan, Brooklyn and Queens.

"Estate" has more than one meaning in New York. A Surrogate's Court clerk, a bank, a title company and the Department of Taxation and Finance can each use the word for a different set of property. Many of the problems families run into after a death come from mixing these meanings up. This page explains each one and shows how they fit together. The actual court procedures are covered on separate pages, which are linked below.

The legal definition

New York's Estates, Powers and Trusts Law defines "estate" in EPTL § 1-2.6 as either (1) the interest a person has in property, or (2) the aggregate of property a person owns. The first meaning is used in real property law, as in a "life estate" or a "fee simple estate." The second meaning is the one most people have in mind after a death: everything the person owned.

After a death, "everything the person owned" gets divided several ways, depending on the question being asked:

• Probate estate: property that passes under the will or the intestacy statute and needs a court-appointed fiduciary to collect it.
• Non-probate property: property that passes automatically by contract, title or trust terms.
• Trust estate: property held in a particular trust.
• Small estate: a probate estate under a dollar limit that qualifies for simplified handling.
• Gross, net and taxable estate: the figures used for estate tax, which include much of the non-probate property.

Probate estate vs. non-probate property

The probate estate is property titled in the decedent's sole name with no beneficiary designation and no survivorship feature. It passes under the will, or under the intestacy rules in EPTL 4-1.1 if there is no will. An executor or administrator must receive letters from the Surrogate's Court before anyone can collect it.

The following generally pass outside the probate estate:

• Life insurance, IRAs, 401(k)s and annuities with a living named beneficiary
• Bank and brokerage accounts marked payable on death (POD), in trust for (ITF), or transfer on death (TOD)
• Accounts and real property held jointly with right of survivorship
• Real property owned by spouses as tenants by the entirety
• Property already transferred to a living trust

This list is not exhaustive, and a non-probate asset can fall back into the probate estate. If the named beneficiary died first and no contingent beneficiary is named, or if the estate itself is named as beneficiary, the asset usually becomes a probate asset. For accounts with no beneficiary, see what happens to a bank account with no beneficiary in New York. For planning ways to keep assets out of probate, see how to avoid probate in New York.

Trust estate

A trust estate is the property held by the trustee of a specific trust. A person can have several trusts, and each has its own trust estate. Property in a funded revocable or irrevocable trust is not part of the probate estate, which is why trusts are a common probate-avoidance tool. A trust created inside a will (a testamentary trust) is different: its property goes through probate first and is then funded from the estate. Trust property can still count for estate tax, as explained below. For more, see benefits of a living trust and whether trusts are public record.

Small estates: three separate mechanisms

"Small estate" is often used loosely. In New York there are three distinct ways to handle probate property, and they have different rules.

1. Payment without any court proceeding (SCPA 1310)

Under SCPA 1310, where no executor, administrator or voluntary administrator has been appointed, a bank or other party holding money owed to the decedent may, after 30 days from the date of death, pay up to $30,000 directly to a family member on an affidavit. The statute lists who may receive payment in order of priority: the surviving spouse, then adult children, then adult grandchildren, then parents, then siblings. A creditor who paid the funeral bill may also be paid in certain circumstances.

Points that are often missed:

• The payer is permitted, not required, to pay. Many banks decline 1310 affidavits or impose lower internal limits and ask for court papers instead.
• The recipient does not simply keep the money. The person who collects it holds it for those legally entitled to it. That includes paying funeral expenses and distributing under the will or intestacy law. The recipient can be held accountable for misapplying it.
• It does not reach real property, and it does not authorize a lawsuit.

2. Voluntary administration (SCPA Article 13)

Voluntary administration is a simplified Surrogate's Court proceeding. Under SCPA 1301, it is available where the decedent's personal property does not exceed $50,000, exclusive of property set off to the family under EPTL 5-3.1. The statute says "does not exceed," so an estate of exactly $50,000 qualifies. The Legislature has considered raising this figure, so confirm the current amount before filing. It can be used with or without a will.

The person who files is called the voluntary administrator. SCPA 1303 sets the order of who may serve, starting with an executor named in the will and then the surviving spouse and other distributees. The voluntary administrator files an affidavit in the Surrogate's Court of the county where the decedent lived. The court issues a certificate, and the voluntary administrator uses it to collect assets, pay debts in the order the law requires, distribute the balance, and report the disposition to the court.

Limits on voluntary administration:

• Real property: a voluntary administrator has no authority to sell or transfer real property titled in the decedent's sole name. Real property held jointly with survivorship rights or as tenants by the entirety passes outside the estate and does not block the process.
• Lawsuits: a wrongful death claim under EPTL 5-4.1 must be brought by a personal representative who holds letters. A voluntary administration certificate is not enough. A personal injury claim the decedent had before death also usually requires letters.

3. Full probate or administration

Estates over the threshold, estates that need to sell sole-name real property, and estates with lawsuits go through a full proceeding. If there is a will, the executor petitions for probate and receives letters testamentary. If there is no will, a distributee petitions for letters of administration. See our pages on estate administration, administration letters, and serving as administrator without a will. For how long the process usually takes, see a sample NYC probate timeline.

Family exempt property (EPTL 5-3.1) and why it matters for the threshold

EPTL 5-3.1 gives a surviving spouse, or children under 21 if there is no spouse, certain property that does not pass under the will and is not used to pay most creditors. The categories include household furniture and appliances, family books and pictures, and one motor vehicle, each up to a statutory value cap, plus up to $25,000 in cash or other personal property. The exact caps are set in the statute and have been raised over time.

This exempt property is excluded when deciding whether an estate is under the SCPA 1301 limit. An estate with $70,000 of personal property can still qualify for voluntary administration if enough of it is exempt property set off to the surviving spouse.

Gross, net and taxable estate

For tax purposes the word "estate" is much broader than the probate estate. Skipping probate does not mean skipping estate tax.

• Gross estate: nearly everything the decedent owned or controlled at death. That includes probate assets, revocable trust assets, retirement accounts, life insurance the decedent owned, and the decedent's share of jointly held property. For spouses holding property jointly, generally half is included.
• Net estate: what is left after debts, funeral costs and administration expenses. This is the amount actually available for beneficiaries.
• Taxable estate: the gross estate minus allowable deductions, chiefly the unlimited marital deduction for property passing to a U.S. citizen spouse, the charitable deduction, debts and expenses.

New York estate tax and the "cliff"

New York imposes its own estate tax under Tax Law § 952. The basic exclusion amount is adjusted for inflation each year. It was $6,940,000 for deaths in 2024 and $7,160,000 for deaths in 2025. Rates run up to 16%.

New York's exclusion phases out quickly. If the taxable estate exceeds the exclusion by up to 5%, part of the benefit is lost. If the taxable estate is more than 105% of the exclusion, the entire exclusion is lost and the whole estate is taxed from the first dollar. This is the New York estate tax cliff. A small increase in estate size near the threshold can produce a large tax bill, which is why planning for estates in this range matters.

Two other New York rules differ from federal law:

• No portability: a surviving spouse cannot use the deceased spouse's unused New York exclusion.
• Gift add-back: taxable gifts made within three years of death are added back to the New York estate, under a provision the Legislature has repeatedly extended.

For planning options, see advanced New York estate planning techniques. For a common question about joint accounts, see whether joint bank accounts are subject to inheritance tax.

Federal estate tax

The federal basic exclusion was $13,990,000 per person for deaths in 2025. Under legislation enacted in July 2025, it is set at $15,000,000 for 2026, with inflation adjustments after that. The top federal rate is 40%. Unlike New York, federal law allows portability, so a surviving spouse can use a deceased spouse's unused exclusion if a timely federal estate tax return makes the election. Most New York estates owe no federal tax but can still owe New York tax.

Worked example 1: surviving spouse with mostly non-probate assets

A husband dies in Manhattan. He leaves a life insurance policy naming the children as beneficiaries, a house the couple bought together while married, a $20,000 joint account with right of survivorship with his wife, and a $30,000 checking account in his sole name with no beneficiary.

1. Identify non-probate assets: the insurance goes to the children by contract. The house, bought by spouses with no contrary language in the deed, is held as tenants by the entirety and passes to the wife. The joint account passes to the wife by survivorship.
2. Compute the probate estate: only the $30,000 checking account remains. There is no sole-name real property and no pending lawsuit.
3. Apply EPTL 5-3.1: the wife may claim up to $25,000 of the account as exempt property. That further reduces the amount counted toward the small estate limit.
4. Choose the mechanism: after 30 days, the wife, first in priority under SCPA 1310, can ask the bank to pay the $30,000 on an affidavit. If the bank refuses, she can file for voluntary administration in New York County Surrogate's Court, because the personal property is well under $50,000. Full probate is not needed unless other assets turn up.
5. Check the will: if the husband's will leaves property to others, the wife must apply any amount beyond her exempt property according to the will, after funeral expenses and debts.

For estate tax, all of these assets, including the insurance if the husband owned the policy, are part of his gross estate. At this size, no New York or federal tax is due.

Worked example 2: Queens real property and a wrongful death claim

A widowed mother dies in Queens without a will after a car crash. She owned a condominium in her sole name and had $40,000 in a bank account. Her two adult children are her only distributees.

1. Probate estate: the condo, the bank account, and the wrongful death claim arising from the crash.
2. Threshold: the $40,000 of personal property is under $50,000, so on the numbers alone voluntary administration looks available.
3. Why it does not work here: a voluntary administrator cannot sell the sole-name condo, and a title company will want to see letters before insuring a sale. The wrongful death claim requires a personal representative holding letters under EPTL 5-4.1.
4. Result: one of the children petitions Queens County Surrogate's Court for letters of administration. The court often issues limited letters that let the administrator start the lawsuit but bar settling it without court approval. Any wrongful death recovery is distributed under the separate rules of EPTL 5-4.4, not the general intestacy rules.

For practical issues while the estate is open, see getting access to a house after a death and affidavits of heirship.

Which Surrogate's Court handles the estate

Venue is generally the county where the decedent was domiciled at death. Each county has its own Surrogate's Court, clerks and local practices.

• Manhattan: New York County Surrogate's Court, 31 Chambers Street.
• Brooklyn: Kings County Surrogate's Court, 2 Johnson Street. See our Brooklyn estate lawyer page.
• Queens: Queens County Surrogate's Court, 88-11 Sutphin Boulevard, Jamaica.

Filing fees are set by SCPA 2402 and scale with the size of the estate. Small estate filings carry lower fees than full probate or administration. Clerks can reject papers for missing death certificates, incomplete family trees, or unsigned waivers, so check the court's current forms and requirements before filing.

Frequently asked questions

Does a revocable trust avoid New York estate tax?

No. A revocable trust can keep assets out of probate, but its assets remain in the gross estate for New York and federal estate tax.

Can a small estate include a house?

A house held as tenants by the entirety or jointly with survivorship rights passes outside the estate and does not affect small estate eligibility. A house in the decedent's sole name cannot be sold or transferred by a voluntary administrator. That usually means full probate or administration is needed.

Is the 1310 affidavit the same as a small estate proceeding?

No. The SCPA 1310 affidavit involves no court filing and depends on the bank's willingness to pay. Voluntary administration under Article 13 is a court proceeding that produces a certificate the voluntary administrator can present to banks and others.

Talk with a New York estates lawyer

Deciding which assets are in the probate estate, whether exempt property brings an estate under the limit, and whether estate tax applies often decides which procedure you can use. We can review the assets and tell you which route fits. The Law Offices of Albert Goodwin has offices in New York City, Brooklyn and Queens. Call 212-233-1233 or email [email protected].

This page provides general information about New York law and is not legal advice. Dollar thresholds and tax figures change, and the right procedure depends on the specific facts of the estate. Reading this page does not create an attorney-client relationship.

Sources

• EPTL § 1-2.6 (definition of estate)
• EPTL § 5-3.1 (exempt property for family)
• EPTL § 5-4.1 (wrongful death action)
• SCPA § 1301 (small estates defined)
• SCPA § 1303 (who may act as voluntary administrator)
• SCPA § 1310 (payment of debts without administration)
• New York Tax Law § 952 (estate tax)