Probate in New York: A 2024 Guide to the Surrogate's Court Process

By Albert Goodwin, Esq., a New York estate attorney admitted to practice in New York State and before the U.S. District Courts for the Southern and Eastern Districts of New York. Last updated: June 2024. Read Albert Goodwin's full bio and credentials.

Probate is the court-supervised process by which a deceased person's last will and testament is proven valid and an executor is authorized to settle the estate. In New York, probate takes place in the Surrogate's Court of the county where the decedent was domiciled at death. Unlike many other states, New York maintains a dedicated court — one in each of the state's 62 counties — devoted almost exclusively to estate and trust matters, governed by the Surrogate's Court Procedure Act (SCPA) and the Estates, Powers and Trusts Law (EPTL).

This guide explains how probate actually works in New York, the specific forms and statutes involved, what it costs in 2024, and how long it realistically takes. It is written from our experience handling probate matters in the Surrogate's Courts of Manhattan (New York County), Brooklyn (Kings County), Queens, the Bronx, and the surrounding suburban counties.

When Is Probate Required in New York?

Probate is required when a person dies owning assets in their sole name with no beneficiary designation or surviving joint owner. If the decedent left a will, the proceeding is called probate. If there is no will, the proceeding is called administration and follows a separate track under SCPA Article 10 — see our detailed page on estate administration without a will.

Not every asset passes through probate. The following typically transfer outside of the Surrogate's Court:

• Property held as joint tenants with right of survivorship or as tenants by the entirety (married couples)
• Bank accounts with a payable-on-death (POD) designation or in-trust-for (Totten trust) form
• Life insurance, IRAs, and retirement accounts with a named beneficiary
• Assets titled in a revocable living trust

Because of this, many estates can be structured to avoid probate entirely. We explain those strategies on our page about how to avoid probate in New York.

Small Estates: New York's Voluntary Administration Shortcut

If the decedent's personal property is worth $50,000 or less and there is no real estate that must be sold, the estate can usually be handled through voluntary administration (the small estate proceeding) under SCPA Article 13. Instead of a full petition, you file an Affidavit in Relation to Settlement of Estate Under Article 13 with the county Surrogate's Court. The filing fee for a small estate proceeding is a flat $1.00. This is dramatically faster and cheaper than full probate, and we frequently recommend it for modest bank-account estates.

Note that the $50,000 threshold excludes assets that already pass outside probate (joint accounts, life insurance with named beneficiaries, and exempt property under EPTL 5-3.1, such as a vehicle and household goods set aside for a surviving spouse or minor children).

Step-by-Step: How New York Probate Works

1. Filing the Probate Petition

The named executor files a Probate Petition (Form P-1) with the original will, the death certificate, and supporting affidavits in the Surrogate's Court of the county of domicile. The petition lists all distributees (the people who would inherit if there were no will) under EPTL 4-1.1, because those individuals have the right to object to the will.

The filing fee is set by SCPA 2402 and is based on the gross value of the estate:

• Under $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 and over — $1,250

2. Giving Notice and Obtaining Jurisdiction

Every distributee must either sign a Waiver and Consent or be served with a citation directing them to appear in court on a return date. If a distributee cannot be located, the court may require diligent-search affidavits and the appointment of a guardian ad litem to protect unknown or under-disabled interests. Where heirs are remote (cousins, nieces, nephews), the court demands kinship proof — family-tree affidavits, birth/death/marriage records, and sometimes a kinship hearing — before it will issue letters.

3. The Court Admits the Will and Issues Letters Testamentary

If the will is genuine, properly executed under EPTL 3-2.1 (two witnesses, signed at the end), and no valid objection is raised, the Surrogate admits the will to probate and issues Letters Testamentary empowering the executor to act. Learn more on our page for obtaining Letters Testamentary. Where there is no will, the court issues Letters of Administration following the priority order in SCPA 1001 — see our guide to Letters of Administration.

If someone files objections to the will — typically alleging lack of capacity, undue influence, or improper execution — the case becomes contested and moves to discovery and potentially trial. See our overview of the will contest process.

4. Collecting Assets and Paying Debts

The executor marshals assets, obtains appraisals, and files an inventory of assets with the court (required under the Uniform Rules within six months of letters). New York creditors have seven months from the date letters are issued to present claims (SCPA 1802). An executor who distributes before that seven-month window closes can be held personally liable to a creditor who later files a timely claim — a trap we frequently warn fiduciaries about.

5. Estate Taxes

New York imposes its own estate tax. For deaths in 2024, the New York basic exclusion is $6.94 million, and New York has a notorious "cliff": estates exceeding the exclusion by more than 5% lose the benefit of the exclusion entirely and are taxed on the whole estate. The federal estate tax exemption for 2024 is $13.61 million. Most New York estates owe no estate tax, but the return deadlines and the cliff make professional review important for larger estates.

6. Accounting and Closing the Estate

After debts and taxes are paid, the executor prepares an accounting. If all beneficiaries approve, they sign Receipts, Releases and Refunding Agreements and the executor distributes the estate informally. If a beneficiary objects, a formal judicial accounting is filed under SCPA Article 22, and a court decree settling the account discharges the executor from liability. For a realistic month-by-month walkthrough, see our sample NYC probate timeline.

How Long Does Probate Take in New York?

An uncontested estate where all distributees sign waivers and the will is clean can have Letters Testamentary issued within 4 to 8 weeks of filing in most counties, though processing times vary — New York County and Kings County are generally busier than smaller upstate counties. Because of the seven-month creditor period, full administration and distribution usually takes 9 to 18 months. Contested matters, missing distributees, or kinship issues can extend a case to two years or more.

What Does Probate Cost in New York?

Beyond the SCPA 2402 court filing fee above, costs commonly include:

• Attorney fees — in New York these are reasonable and not fixed by a statutory percentage; they may be hourly or a negotiated flat/blended arrangement and are subject to Surrogate's Court review
• Executor commissions set by statute under SCPA 2307 (e.g., 5% on the first $100,000, 4% on the next $200,000, scaling down to 2% on amounts over $5 million)
• Certified copies of letters (typically a few dollars each)
• Surety bond premiums, if the will does not waive a bond or there is no will
• Appraisal and accountant fees for valuations and tax returns

Who Is Involved in a New York Probate

• Surrogate — the elected judge of the Surrogate's Court who admits wills and resolves disputes
• Executor / Administrator — the fiduciary who settles the estate
• Distributees — the next of kin entitled to notice under EPTL 4-1.1
• Beneficiaries — those named to inherit under the will
• Guardian ad litem — appointed to protect minors, incapacitated persons, or unknown heirs
• Creditors — entitled to file claims within the seven-month period

Frequently Asked Questions About New York Probate

What is the small estate limit in New York?

$50,000 or less in personal property (with no real estate that must be sold) qualifies for voluntary administration under SCPA Article 13, with a $1 filing fee.

Does every county handle probate the same way?

The governing law (SCPA and EPTL) is statewide, but practical processing times, clerk procedures, and local court rules differ between counties such as New York, Kings, Queens, Bronx, Nassau, Suffolk, and Westchester. Busier downstate courts often take longer to issue letters.

Do I need a lawyer to probate a will in New York?

The law does not require an attorney for an individual fiduciary, but the Surrogate's Court forms, citation/jurisdiction rules, and kinship requirements are technical, and a fiduciary who makes a distribution error can be held personally liable. Most executors retain counsel for these reasons.

What happens if there is no will?

The estate passes by intestacy under EPTL 4-1.1, and a relative petitions for Letters of Administration following the priority order of SCPA 1001. See our administration page and our guide on becoming an administrator without a will.

How do I avoid probate in New York?

Common methods include revocable living trusts, joint ownership with right of survivorship, and beneficiary/POD designations. Read more on avoiding probate in New York.

Speak With a New York Probate Attorney

Probate in New York is governed by detailed statutes and varies in practice from county to county. At the Law Offices of Albert Goodwin, we handle probate, administration, will contests, and estate accountings throughout New York City and the surrounding counties. Our office is located in Midtown Manhattan. You can reach us at 212-233-1233 or by email at [email protected].

This article is for general informational purposes about New York law and is not legal advice. Statutory thresholds, fees, and tax exclusions are current as of 2024 and may change; confirm current figures with the relevant Surrogate's Court or counsel before relying on them.