If someone you love was domiciled abroad and left a New York home, account, or other property, you may need a New York court file before a bank or a buyer will transfer it. That file is often an ancillary probate or ancillary administration in Surrogate's Court.
This page covers the usual path, the papers you are often asked to gather, and where tax steps tend to sit. Timelines vary with the county and the facts. This is general information, not legal advice.
Key takeaways
- New York property often calls for a Surrogate's Court proceeding even when the main estate is abroad.
- The case is often ancillary under SCPA Article 16. A will validly executed under New York law may be admitted to original probate in New York in some cases (SCPA 1605).
- You generally file in the county where the property sits. A noncitizen who is not domiciled in New York is generally not eligible for letters, unless the court allows that person to serve as a foreign guardian under SCPA 1716(4) or with one or more co-fiduciaries, at least one of whom is a New York resident (SCPA 707(1)(c)).
- The court often wants a death record, foreign probate papers, the will, translations, and asset proof. A tax adviser handles any federal return and any transfer certificate.
Ancillary administration, or original probate
When the person died domiciled outside New York and left property here, the court may issue ancillary letters. Those letters are permission to act on the New York assets (SCPA Article 16). When a will has already been probated or established where the person was domiciled, New York may admit it to ancillary probate limited to the New York property (SCPA 1602). If there was no will, a related ancillary administration may be available, depending on the facts. Our ancillary probate post explains the basic steps, so this page stays with a foreign estate.
A will of someone domiciled abroad that was validly executed under New York law may sometimes be admitted to original probate here (SCPA 1605). If the will was already probated where the person was domiciled, original probate in New York is generally available only if ancillary probate would be unduly expensive, inconvenient, or impossible, the will directs probate in New York, or the domicile's law discriminates against New York domiciliaries (SCPA 1605). Which path fits depends on any other proceeding, the will, and the assets. Domicile often decides whether New York is the main estate or an ancillary one. That difference is covered in citizenship, residence, and domicile. A family's first weeks are also sketched in parent died abroad with New York assets.
Which county, and who may serve
You generally file in the Surrogate's Court of the county where the New York property is located. If assets sit in more than one county, the right county depends on what those assets are.
The person appointed abroad often asks for New York letters. Eligibility is a separate question. Under SCPA 707(1)(c), a noncitizen who is not domiciled in New York is generally not eligible to receive letters, except that the court, in its discretion, may allow that person to serve as a foreign guardian under SCPA 1716(4) or together with one or more co-fiduciaries, at least one of whom is a New York resident. The court may also address a bond, and in some ancillary matters a bond may be waived, depending on the facts (SCPA 1608).
Documents the court often asks for
The set varies, but you are often asked for the following:
- A death certificate from the place of death or, in some cases involving a U.S. citizen, a consular report of death.
- The foreign probate order, letters, or grant, authenticated for use here. Many public documents from countries that are parties to the Hague Apostille Convention may be authenticated by apostille. Documents from some countries need a different legalization.
- The will and, if it is not in English, a translation, often with the translator's affidavit.
- A family tree of distributees, with addresses. Heirs who live abroad are often still necessary parties. See when your heir lives abroad.
- Proof of the New York assets, such as a deed or a recent account statement. The asset inventory worksheet and the cross-border document checklist can help you gather this first.
An oath taken outside New York is generally treated as if taken here when it carries the certificate that would let a deed acknowledged outside New York be recorded, which can include a certificate of conformity (CPLR 2309(c); RPL 299-a). How to prepare translations and apostilles is covered in foreign documents, translations, and apostilles. We coordinate with counsel abroad on what the home country can issue. We do not advise on foreign law.
Real property, accounts, and smaller estates
New York law often governs how real property here passes, even when the owner was domiciled abroad, and personal property may follow the law of the domicile, depending on the facts. A will made by someone domiciled abroad may also, in some cases, elect New York law for property in New York (EPTL 3-5.1(h)). A foreign grant alone often does not clear title. A buyer, a title company, or a bank will often ask for New York letters before it transfers a deed or releases an account. An acknowledgment taken outside New York may follow New York law or local law; if it follows local law, it generally needs a certificate of conformity (RPL 299-a).
If the only assets here are personal property of limited value, and there is no real property to transfer, a shorter small-estate procedure may be available in some cases. It does not fit every estate. Real property generally calls for a fuller proceeding. If you still own New York property while living abroad, see live abroad, own New York property.
Federal and New York tax steps
If the person was not a U.S. citizen and was not domiciled in the United States, the estate may face federal estate tax on U.S.-situs assets. In many cases a tax adviser prepares Form 706-NA. Whether an asset is U.S. situs depends on what it is. A bank or transfer agent often asks for an IRS transfer certificate before it releases assets of a nonresident decedent. Your tax adviser or accountant handles the return and any certificate request.
New York may impose estate tax on a nonresident's real property and tangible personal property located here (Tax Law 960). Intangible property, such as a bank or brokerage account, is generally excluded from that computation. Whether cooperative apartment shares are treated as real property or as intangibles for this purpose should be reviewed with your tax adviser. For the broader non-citizen picture, see estate planning for non-citizens and foreign estates. If you inherited property that stayed overseas, that separate reporting topic is covered in inherited from overseas.
How Schwartsman Law Group can help
Schwartsman Law Group practices New York law only. Our attorneys are admitted only in New York. When the home probate, the will, or other papers come from another country, we coordinate with counsel abroad. We do not advise on foreign law. Your tax adviser or accountant handles Form 706-NA, any transfer certificate, and New York estate-tax filings.
We can help you sort ancillary administration from original probate, the likely county, and the documents to gather first. You can also start with our probate and administration work. Bring what you have to a Free Consultation, or call (212) 518-3868.
Country notes: questions to raise in a consultation
Which other country is in the picture often changes the plan. These are questions to bring to a Free Consultation, not answers for every family. Schwartsman Law Group practices New York law only. Where another country's law may matter, we coordinate with counsel abroad. Call (212) 518-3868.
- Is there a U.S. estate or gift tax treaty? Most countries have none. As of the IRS list reviewed on November 8, 2026, the United States has estate and/or gift tax treaty provisions with Australia, Austria, Canada, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Japan, the Netherlands, South Africa, Switzerland, and the United Kingdom. Canada's estate provisions sit in Article XXIX B of the U.S.–Canada income tax treaty. Each treaty works differently. Check the current IRS estate and gift tax treaties page before relying on any country.
- Does a document need an apostille or consular legalization? That depends on whether both the country that issued the paper and the country that will use it are parties to the Hague Apostille Convention, with the Convention in force between them and without a relevant objection. Membership alone is not enough. Check the HCCH status table for the Apostille Convention. An apostille authenticates the origin, signature, capacity, and seal of a public document. It does not prove the contents are true, that the document is valid under local law, or that a New York court or clerk will accept it.
- Does the other country reserve fixed shares for family (forced heirship) or treat trusts differently? Many civil-law countries do. For property situated in New York, a will made by someone not domiciled in New York may, in some cases, elect New York law under EPTL 3-5.1(h). New York's highest court has applied such an election to reject a foreign forced-heirship claim to New York assets (Matter of Renard, 56 NY2d 973 (1982)). Results depend on the facts, and the election does not control property abroad. Foreign counsel should review the home-country side.
- Will an heir or beneficiary living abroad receive a New York share without court conditions? Under SCPA 2218, if a noncitizen beneficiary lives in a country to which U.S. government checks cannot be sent under federal rules, the court directs that the share be paid into court until a later court order. The court may also do so in some other cases, such as where a beneficiary would not have the benefit, use, or control of the money, or where a foreign country's laws effectively deny New York residents that benefit. Where it appears a noncitizen beneficiary may not have the benefit, use, or control of the share, that person generally has the burden of showing that they will. These questions turn on facts, not on nationality alone. The U.S. Supreme Court held an Oregon reciprocity statute unconstitutional as applied, because probing foreign regimes intruded on the federal foreign-affairs power (Zschernig v. Miller, 389 U.S. 429 (1968)).