New York Probate: The Complete Guide

When a New York resident dies leaving a will, that document has no legal power of its own. Until a judge of the Surrogate's Court reviews the will and admits it to probate, no one — not even the person named as executor — has authority to close bank accounts, sell real estate, or distribute inheritances. For many families, probate arrives at the worst possible moment: a formal court proceeding, with its own vocabulary, strict paperwork requirements, and statutory deadlines, layered on top of grief.

This guide walks through the entire New York probate process, from the first filing to the final distribution. It is written for executors who have just been handed a will and do not know where to begin, for beneficiaries wondering why an inheritance is taking so long, and for family members in Brooklyn, Queens, Manhattan, and across New York State who simply want to understand what happens next.

New York probate is governed primarily by two statutes — the Surrogate's Court Procedure Act (SCPA) and the Estates, Powers and Trusts Law (EPTL) — and we cite both throughout so you can see exactly where each rule comes from.

What probate is — and when it is required

Probate is the legal process by which the Surrogate's Court determines that a will is genuine and valid: that it was signed and witnessed as EPTL 3-2.1 requires, that the person who signed it had testamentary capacity, and that it was not the product of fraud or undue influence. Once satisfied, the court admits the will to probate and issues letters testamentary to the executor, who then has legal authority to act for the estate.

Probate is required only for probate assets — property titled in the decedent's sole name with no beneficiary designation. Common examples include an individually owned home, a bank or brokerage account with no named beneficiary, a vehicle, and personal belongings. Assets that pass outside probate include:

• Property owned jointly with right of survivorship;
• Life insurance, IRAs, 401(k)s, and annuities with living named beneficiaries;
• Bank accounts held in trust for another person (Totten trusts);
• Anything titled in a living trust before death.

If the decedent left no will, the estate instead goes through a parallel proceeding called administration under SCPA Article 10, and assets pass to the closest relatives in the order fixed by EPTL 4-1.1. Our probate and administration practice handles both types of proceedings. And if your real goal is to spare your own family this process someday, start with our companion guide on how to avoid probate in New York.

Surrogate's Court: where the case is filed

Every county in New York has a Surrogate's Court, and venue lies in the county where the decedent was domiciled at death (SCPA 205). Domicile means the person's true, permanent home — not necessarily where the person happened to die.

Kings County (Brooklyn)

The Kings County Surrogate's Court in downtown Brooklyn handles one of the heaviest probate caseloads in the state. Estates of residents of Sheepshead Bay, Brighton Beach, Midwood, Bensonhurst, and every other Brooklyn neighborhood are filed here.

Queens County

The Queens County Surrogate's Court sits in Jamaica and serves Forest Hills, Flushing, Astoria, Rego Park, and the rest of the borough. Queens estates frequently involve heirs living abroad, which adds service-of-process complexity — an area where an experienced Queens probate attorney can save a family months.

New York County (Manhattan)

The New York County Surrogate's Court, at 31 Chambers Street in lower Manhattan, handles Manhattan estates, which often involve co-op apartments, larger portfolios, and estates near or above New York's estate tax threshold.

Most downstate counties accept electronic filing, but each courthouse has its own practices, document preferences, and processing times. If the decedent lived outside New York but owned New York property, an ancillary proceeding under SCPA Article 16 may also be required.

Who can serve as executor — and what letters testamentary are

The testator nominates an executor in the will, but the Surrogate must formally appoint that person. Under SCPA 707, a nominee is ineligible to serve if he or she is under eighteen, an incapacitated person, or a non-domiciliary alien (unless serving alongside a New York co-fiduciary), or if the court finds the person unfit by reason of substance abuse, dishonesty, improvidence, or want of understanding; since a 2021 amendment a felony conviction is no longer an automatic bar, but the court may decline to appoint a person with a felony conviction.

Letters testamentary

Letters testamentary are the official court document proving the executor's authority. Banks, brokerages, title companies, and buyers will all demand a recently certified copy of the letters before dealing with the executor. Under SCPA 710 an executor need not post a bond unless the will requires one or a statutory ground applies (for example, a non-domiciliary executor); most professionally drafted wills also expressly waive bond.

Preliminary letters

When full probate will be delayed — because a citation must be served on hard-to-locate relatives, or because someone has threatened a contest — the nominated executor may request preliminary letters testamentary under SCPA 1412. Preliminary letters let the estate be safeguarded in the meantime: collecting assets, paying urgent bills, and securing property while the underlying probate is completed.

The New York probate timeline, step by step

Every estate is different, but a typical uncontested probate follows this sequence:

1. Filing the petition. The nominated executor files a probate petition in the correct county's Surrogate's Court; the original will, a certified death certificate, and supporting documents are filed with it. Beneficiaries, creditors and other interested persons can also file (SCPA 1402).
2. Citation or waivers. The decedent's distributees — the people who would inherit if there were no will — are entitled to notice. They either sign waivers and consents or are served with a citation to appear (SCPA 1403). This step alone can take weeks or months when relatives are numerous, estranged, or overseas.
3. Letters issue. Once the return date passes without objection and the court's requirements are satisfied, the will is admitted to probate and letters testamentary issue.
4. Marshaling assets. The executor obtains a taxpayer identification number for the estate, opens an estate account, collects bank and brokerage assets, secures real property, and prepares an inventory.
5. The seven-month creditor window. Under SCPA 1802, an executor who waits seven months from the issuance of letters before distributing generally cannot be held personally liable for valid claims presented later. Prudent executors treat this as a mandatory waiting period.
6. Taxes. The executor files the decedent's final income tax return and fiduciary income tax returns for the estate. A New York estate tax return is generally due nine months after death for taxable estates — in 2026, those above the $7,350,000 state exclusion — and New York's cliff can tax the entire estate once it exceeds the exclusion by more than 5%. Our New York estate tax cliff guide explains the math.
7. Accounting. Before final distribution, the executor accounts to the beneficiaries — usually informally, with receipts, releases, and refunding agreements. If beneficiaries will not sign off, the executor may file a judicial accounting (SCPA 2208) and ask the court to settle it.
8. Distribution and closing. The executor pays commissions and final expenses, distributes the estate according to the will, and closes the estate account.

For a modest, cooperative estate this arc commonly spans nine to eighteen months. Real property sales, tax audits, kinship questions, or objections can stretch it well beyond that.

What probate costs in New York

Probate expenses fall into four buckets: court fees, executor commissions, professional fees, and administrative costs.

Court filing fees

Filing fees in Surrogate's Court are set by SCPA 2402 on a sliding scale keyed to the size of the estate: the smallest estates pay a nominal fee of under fifty dollars, and the fee steps up through several brackets to a statutory maximum of $1,250 for estates of $500,000 or more. Certified copies of letters, which institutions routinely demand, carry a small per-copy charge.

Executor commissions (SCPA 2307)

New York executors are entitled to statutory commissions calculated on the value of the property they receive and pay out:

On a $600,000 probate estate, for example, the statutory commission would be $22,000 ($5,000 plus $8,000 plus $9,000). Family-member executors sometimes waive commissions — particularly when the executor is also the primary beneficiary — because commissions are taxable income while inheritances generally are not.

Professional and administrative costs

Attorney fees (hourly or flat), appraisal fees for real estate and valuables, bond premiums where required, service-of-process costs for distant heirs, and genealogist fees in kinship cases round out the picture. A well-drafted will that names capable fiduciaries and waives bond keeps several of these costs down.

Small estates: voluntary administration under $50,000

If the decedent left $50,000 or less in personal property — not counting certain exempt items set aside for a surviving spouse or children under 21 under EPTL 5-3.1 — the estate may qualify for voluntary administration under SCPA Article 13, often called the small estate proceeding.

• The filing is a short affidavit rather than a full petition, and the filing fee is one dollar.
• The court issues a certificate for each listed asset, which the voluntary administrator presents to collect it.
• Real property cannot be administered this way: if the decedent owned a house or condo in his or her sole name, a full probate or administration is required.
• The $50,000 ceiling applies to personal property only, so an estate with a jointly owned home and a small solo bank account may still qualify.

Voluntary administration is faster and far cheaper, but it offers less court supervision, and some institutions hesitate over certificates. It works best for genuinely simple situations.

Common causes of probate delay

Most delay in New York probate is predictable — and much of it is avoidable with preparation:

• Identifying and locating distributees. Every distributee must be accounted for. When family trees are complicated — no spouse or children, half-blood relatives, family abroad — the court may require a kinship affidavit from a disinterested person, and sometimes a professional genealogist.
• Service of citation abroad. Serving relatives in other countries can add months to the calendar.
• Guardians ad litem. If a party is a minor or incapacitated, the court appoints a guardian ad litem (SCPA 403) to review the file and report, adding time and expense.
• Lost original wills. Only an original will can normally be probated; probating a copy requires a lost-will proceeding under SCPA 1407 and carries a demanding burden of proof.
• Court backlogs. Processing times vary meaningfully from county to county and season to season.
• Real estate and taxes. Marketing property, closing sales, and obtaining tax clearances stretch the back end of many estates.

When probate is contested

Any person whose financial interest would be adversely affected by the will — typically a distributee who would inherit more without it — has standing to object. Before committing to a fight, that person may examine the attesting witnesses and the attorney who drafted the will under SCPA 1404. Formal objections (SCPA 1410) usually rest on one or more of these grounds:

• Lack of due execution — the signing ceremony did not comply with EPTL 3-2.1 (signature at the end, two attesting witnesses, publication of the will);
• Lack of testamentary capacity — the testator did not understand the nature of making a will, the extent of his or her property, or the natural objects of his or her bounty;
• Undue influence, duress, or fraud — someone overpowered the testator's free will or procured the will by deception;
• Revocation — the will was revoked by a later instrument or physical act.

A contest transforms probate into full litigation, with document discovery, depositions, and potentially a trial before the Surrogate or a jury. Many New York wills contain in terrorem (no-contest) clauses, which are enforceable subject to statutory safe harbors under EPTL 3-3.5 — a SCPA 1404 examination, for instance, does not by itself trigger forfeiture. Whether you are defending a will or questioning one, early strategy matters; we handle contested probates throughout the New York City metro area.

How Schwartsman Law Group can help

Schwartsman Law Group PLLC guides executors, administrators, and beneficiaries through every stage of New York probate — preparing the petition, clearing citation and kinship issues, navigating the seven-month creditor window, coordinating estate tax filings, and bringing the estate to an efficient, well-documented close. With offices in Brooklyn, Manhattan, and Manhasset, founding attorney Marianna Schwartsman and her team regularly appear before the Surrogate's Courts of Kings, Queens, and New York Counties, and our Brooklyn office sits minutes from the neighborhoods we serve. Whether you are opening an estate, stuck mid-process, or facing a contest, call +1 212 518 3868 or request a free consultation today.