Estate Administration in New York When There Is No Will

By Albert Goodwin, Esq., New York estate attorney. Reviewed January 2026 for current fee and tax figures.

Estate administration is the Surrogate’s Court proceeding used when a New York resident dies without a valid will. The court appoints an administrator instead of an executor, and the law, not a will, decides who inherits. The governing rules are SCPA Article 10 (who gets appointed and how) and EPTL 4-1.1 (who inherits and in what shares). If the decedent left a will, you are in the wrong proceeding; see our page on probate in New York. If there is a will but no executor able to serve, the proceeding is administration c.t.a., which is different from what this page covers.

This page explains the full intestate process: the order of priority for appointment, the bond, the intestate share table, court filing fees under SCPA 2402, administrator commissions under SCPA 2307, county differences in the five boroughs, and the questions clients ask us most often.

Administration vs. Probate: The Difference in One Table

The practical steps after appointment (marshalling assets, paying creditors, accounting) are similar in both proceedings. The front end is where administration differs, and that is where most delays occur.

Is a Full Administration Needed?

Under SCPA 1301, an estate is a small estate if the decedent’s personal property does not exceed $50,000. A small estate goes through voluntary administration, a short affidavit procedure under SCPA 1304, and no bond or full petition is needed. Real property disqualifies an estate from voluntary administration regardless of value. Above $50,000, or if the decedent owned real estate in his or her own name, a full petition for letters of administration is required.

Only estate property counts toward the $50,000 line. Joint accounts with right of survivorship, payable-on-death and transfer-on-death accounts, retirement plans and life insurance with a named beneficiary, and assets held in a trust pass outside the estate and are not counted. A bank account with no beneficiary and no joint owner is estate property; see bank accounts with no beneficiary in New York.

Who the Court Appoints as Administrator (SCPA 1001)

SCPA 1001 sets the order of priority. Letters go to the eligible person highest on this list who asks for them:

1. The surviving spouse
2. The children
3. The grandchildren
4. The father or mother
5. The brothers or sisters
6. Any other distributee, with preference to the person entitled to the largest share

Within a class, the court may appoint one person or several. Anyone with an equal or prior right who is not petitioning must either sign a waiver and consent or be served with a citation and given the chance to object (SCPA 1003). A person who is not a distributee can be appointed only with the written consent of all distributees entitled to share in the estate. If no eligible distributee is willing to serve, the court appoints the Public Administrator of the county (SCPA Article 11 in the five boroughs).

Who is not eligible (SCPA 707)

• Minors and incapacitated persons: A minor child cannot serve; if the only distributees are minors, the court looks to a guardian or the Public Administrator.
• Felons: A person convicted of a felony is disqualified. See administrators and executors with felony convictions.
• Non-domiciliary aliens: A non-U.S. citizen who does not live in New York cannot serve alone, but may serve with a co-administrator who lives in New York. A non-citizen who is domiciled in New York can serve. A U.S. citizen living in another state can serve, though the court may require a bond.
• Unfit persons: The court can refuse letters for dishonesty, improvidence, substance abuse or want of understanding.

Once appointed, an administrator who breaches duties can be removed under SCPA 711 and 719. See removing an administrator in New York.

The Bond (SCPA 801 and 805)

An administrator must post a surety bond unless the court dispenses with it. The bond is an insurance policy protecting the distributees and creditors against loss caused by the administrator, and its amount is set by the value of the personal property the administrator will control. The annual premium is paid from the estate.

The bond is commonly dispensed with when all adult distributees sign a waiver, or when the administrator is the sole distributee. Where consent cannot be obtained, the court can instead issue letters that restrain the administrator from collecting or selling assets without a further court order, or direct that funds be deposited in a bank subject to withdrawal only on court order (SCPA 805(3)). Bonding companies screen applicants; poor credit or a prior bankruptcy can make a bond hard to obtain, which in turn affects who in the family should petition.

Who Inherits Without a Will (EPTL 4-1.1)

The intestate shares are fixed by statute. The court does not consider who was closest to the decedent, who paid for the funeral, or what the decedent said he or she wanted.

“By representation” is defined in EPTL 1-2.16: the estate is divided at the closest generation with a living member, and the shares of deceased members of that generation are pooled and divided equally among their issue. Several related rules apply often:

• Half-blood relatives: Treated the same as whole-blood relatives (EPTL 4-1.1(b)).
• Adopted children: Inherit from adoptive parents as if born to them, and generally not from birth parents (Domestic Relations Law 117).
• Non-marital children: Inherit from the mother. They inherit from the father if paternity is established under EPTL 4-1.2, by an order of filiation, an acknowledgment of paternity, or clear and convincing evidence, which can include DNA testing or proof that the father openly acknowledged the child.
• Disqualified spouse: A spouse loses intestate rights after a divorce or annulment, or where the spouse abandoned the decedent or refused to support the decedent (EPTL 5-1.2). A separated spouse who is not divorced still inherits unless one of these grounds is proven.
• Disqualified parent: A parent who abandoned a minor child or failed to support the child does not inherit from that child (EPTL 4-1.4).
• Exempt property: Before the shares are computed, the spouse (or minor children if there is no spouse) is entitled to set aside certain items under EPTL 5-3.1, including up to $25,000 in cash, a vehicle up to $25,000 in value, and household furnishings and books within statutory limits.

Proving Who the Heirs Are

In a probate proceeding, kinship is rarely litigated. In administration it is the central fact. The petition must list every distributee with a name and address, and the court will not issue full letters until it is satisfied the list is complete. If the heirs are more remote than children, the Surrogate’s Court rules (22 NYCRR 207.16) require an affidavit of heirship from a disinterested person who knew the family, with supporting records such as birth, marriage and death certificates.

When the heirs are cousins, or their identity or whereabouts is unknown, the court will often appoint the Public Administrator and the family must prove its relationship in a kinship hearing under SCPA 2225 before any distribution. A genealogist’s report is usually required. These cases take years, not months, and funds for unlocated heirs are deposited with the New York City Department of Finance or the State Comptroller.

Court Filing Fees (SCPA 2402)

The fee for filing a petition for letters of administration depends on the gross value of the estate listed in the petition:

Certified copies of the letters (the certificates you hand to banks) cost $6 each. A voluntary administration affidavit costs $1. If the administrator later needs to file a formal accounting, a separate fee under SCPA 2402 applies, again scaled to the value of the estate. Beyond court fees, the estate pays the bond premium, publication costs if citation by publication is ordered, and attorney’s fees, which are subject to the court’s supervision for reasonableness.

Administrator Commissions (SCPA 2307)

An administrator is entitled to a commission from the estate for the work of receiving and paying out estate money. The statutory rates are:

• 5% on the first $100,000
• 4% on the next $200,000 (from $100,000 to $300,000)
• 3% on the next $700,000 (from $300,000 to $1,000,000)
• 2.5% on the next $4,000,000 (from $1,000,000 to $5,000,000)
• 2% on everything above $5,000,000

Worked example: an administrator who collects and distributes $450,000 of estate assets is entitled to $5,000 (5% of $100,000) plus $8,000 (4% of $200,000) plus $4,500 (3% of $150,000), for a total commission of $17,500. Commissions are not paid on real property that is distributed in kind rather than sold, or on assets that pass outside the estate. Where more than one administrator serves, SCPA 2307 limits the number of full commissions by the size of the estate: one commission shared if the estate is under $100,000, up to two full commissions between $100,000 and $300,000, and up to three above $300,000. A commission is taxable income to the administrator; an inheritance is not, so a sole distributee usually waives the commission.

The Process, Step by Step

1. Gather documents: Certified death certificates, a list of distributees with addresses, and an estimate of assets and debts. Confirm no will exists by checking the home, safe deposit box, prior attorneys and the Surrogate’s Court will depository. If the decedent lived in a rental or co-op, see getting access to an apartment after death.
2. Prepare the petition: The petition (Surrogate’s Court form A-1) states the decedent’s domicile, date of death, distributees, assets and the petitioner’s priority. It is filed in the county where the decedent was domiciled, together with the death certificate, waivers and consents, any affidavit of heirship, the filing fee and the proposed bond or a request to dispense with it.
3. Serve or obtain waivers: Every person with an equal or prior right to letters signs a waiver or is served with a citation returnable in court (SCPA 1003). Other distributees receive notice of the application (SCPA 1005). Out-of-state and foreign heirs lengthen this step.
4. Court review and appointment: The clerk reviews the file. Deficiencies are returned for correction, which is the most common source of delay. When the file is complete and any citation date has passed without objection, the court signs the decree and issues letters of administration.
5. Marshal the assets: Obtain an estate tax identification number, open an estate account, collect bank and brokerage accounts, secure and insure real estate, and recover property held by others, by a discovery and turnover proceeding if necessary.
6. File the inventory: Due within six months of the letters under 22 NYCRR 207.20.
7. Pay debts and taxes: Creditors have seven months from the issuance of letters to present claims (SCPA 1802). An administrator who distributes in good faith after seven months is protected against late claims. The administrator files the decedent’s final income tax return and, if required, estate tax returns. Debts are paid in the order set by SCPA 1811 (administration expenses and funeral costs first, then taxes and other claims).
8. Account and distribute: The administrator prepares an account of receipts, disbursements and proposed distributions. Distributees who approve sign receipts and releases. If anyone objects or cannot be located, the administrator files a formal accounting for judicial settlement.

Estate Taxes in an Intestate Estate

Most intestate estates owe no estate tax. For deaths in 2026, the New York basic exclusion amount is $7,350,000 (Tax Law 952), and the federal exclusion is $15,000,000, indexed for inflation. New York’s tax has a cliff: under Tax Law 952(c), the credit phases out once the taxable estate exceeds the exclusion by more than 5%, so an estate just over $7,717,500 pays New York tax on its entire value, not just the excess. Intestate estates near that line should get appraisals before distribution. The exclusion is adjusted each year, and the administrator should confirm current figures with the Department of Taxation and Finance before filing.

How Long Administration Takes in Each Borough

Each county’s Surrogate’s Court has its own staffing, backlog and local practices, and processing times change from year to year. Some general observations:

• New York County (Manhattan): Generally the fastest of the five boroughs for uncontested petitions, and the most willing to issue letters quickly where all waivers are in hand.
• Kings County (Brooklyn): Heavy volume. Uncontested files commonly wait longer for clerk review, and the court is strict about affidavits of heirship and proof of domicile. See our Brooklyn estate lawyer page.
• Queens County: Volume comparable to Kings, with many estates involving foreign heirs, which adds time for service abroad and foreign-language waivers.
• Bronx County: A smaller court; timing depends heavily on whether the file is complete on first submission.
• Richmond County (Staten Island): The smallest docket in the city and often the quickest turnaround once a file is accepted.

For an uncontested estate with cooperative heirs, letters often issue within one to three months of filing, and the full administration, from filing to final distribution, usually runs nine to eighteen months because of the seven-month creditor period and tax filings. Contested kinship, missing heirs, real estate sales, or objections to the appointment can extend this to several years. For a month-by-month illustration, see a sample NYC estate timeline; most of the post-appointment steps are the same for administration.

Frequently Asked Questions

Can a non-citizen be the administrator of a New York estate?

Yes, if the person lives in New York. A non-citizen who lives outside New York cannot serve alone under SCPA 707(1)(c), but can serve together with a co-administrator who is a New York resident.

Is there a deadline to file for administration after a death?

New York sets no statutory deadline. Delay still causes harm: bank accounts may be turned over to the State Comptroller as abandoned property, real estate taxes and insurance lapse, and evidence of kinship becomes harder to gather as witnesses die. Creditors’ claims and tax obligations do not wait for the appointment.

The decedent owned property in another state. What happens to it?

Real property is governed by the law of the state where it sits. The New York administrator will usually need an ancillary proceeding in that state, and an out-of-state representative who needs to reach New York property applies for ancillary letters in New York under SCPA Article 16.

My sibling and I both want to be administrator. Who wins?

Children share equal priority under SCPA 1001. The court can appoint both, or choose between them. In practice the court looks at which petitioner is eligible, bondable, local and supported by the other distributees. A contested appointment is heard on the citation return date and can add months.

What if a distributee cannot be found?

The petitioner must show a diligent search. The court will direct service by publication and may appoint a guardian ad litem for the missing person. The missing heir’s share is deposited with the Department of Finance (in the five boroughs) or the Comptroller until claimed.

Does the surviving spouse get everything?

Only if the decedent left no children or grandchildren. With issue, the spouse takes $50,000 plus half of the balance, and the issue take the rest. Many spouses are surprised to learn that children from a prior relationship are entitled to a share of the estate, including a share of a house titled in the decedent’s name alone.

Do I have to post a bond?

Usually yes, unless every adult distributee signs a waiver or you are the sole distributee. If a bond cannot be obtained, the court can issue restricted letters under SCPA 805(3) that require court approval before assets are sold or withdrawn.

Does the administrator get paid?

Yes, through statutory commissions under SCPA 2307, described above. The administrator is also reimbursed from the estate for reasonable out-of-pocket expenses and attorney’s fees.

Can the administrator be held personally liable?

Yes. An administrator who distributes before the seven-month creditor period ends, fails to file tax returns, mixes estate funds with personal funds, or sells estate property to himself or herself can be surcharged in the accounting and, in serious cases, removed. See breach of fiduciary duty by an administrator.

Can administration be avoided entirely?

For a person planning ahead, yes. Joint ownership, beneficiary designations and a revocable trust move assets outside the Surrogate’s Court. See how to avoid probate in New York. After a death, the only way to avoid a full proceeding is if the estate qualifies as a small estate under SCPA 1301.

How We Can Help

We prepare and file administration petitions in the Surrogate’s Courts of New York, Kings, Queens, Bronx and Richmond counties and in Nassau, Suffolk and Westchester. Our work includes determining priority among family members, obtaining waivers from heirs in the United States and abroad, drafting affidavits of heirship, arranging or dispensing with the bond, handling creditor claims and tax filings, and preparing the final accounting. We also represent distributees who want to know what an administrator has done with the estate. Call 212-233-1233 or email [email protected].