How Probate Works in New York: Surrogate's Court Process
How Probate Works in New York: Surrogate's Court Process
New York probate is governed by the Surrogate's Court Procedure Act (SCPA) and the Estates, Powers and Trusts Law (EPTL). The state's probate court is called the Surrogate's Court -- each of New York's 62 counties has one. The process ranges from a simple $1 small estate affidavit to a full probate proceeding that can take over a year. Which path applies depends on the size of the estate, whether a will exists, and whether the estate includes real property.
When Probate Is Not Required in New York
Not every asset goes through probate. New York law provides several ways assets can transfer directly to the surviving owner or named beneficiary.
These assets skip probate:
- Joint accounts with right of survivorship (Banking Law ss 675)
- Tenancy by the entirety (married couples, real property)
- Payable-on-death (POD) bank accounts
- Totten trust accounts ("in trust for" accounts, EPTL ss 7-5.1)
- Transfer-on-death (TOD) deeds (N.Y. RPL ss 424, effective July 19, 2024)
- Life insurance proceeds with a named beneficiary
- Retirement accounts (401(k), IRA) with a named beneficiary
- Property held in a revocable living trust
New York enacted TOD deed legislation effective July 19, 2024. A TOD deed must be signed by two witnesses, acknowledged before a notary, and recorded in the county clerk's office before the transferor's death. It is revocable during the transferor's lifetime.
Before assuming probate is required, inventory every asset and check how each one is titled. Many estates have little or nothing that requires probate.
You will also need to obtain certified death certificates before filing anything with the court.
Court Jurisdiction
Probate in New York is handled by the Surrogate's Court in the county where the deceased was domiciled at the time of death (SCPA ss 205). For non-domiciliaries, see SCPA ss 206.
New York County (Manhattan) and Kings County (Brooklyn) each have two Surrogate judges. All other counties have one. NYC counties generally have longer timelines due to heavier caseloads.
Court locator: https://ww2.nycourts.gov/courtlocator
Path 1: Small Estate / Voluntary Administration
The small estate procedure is the simplest option and avoids full probate.
Governing statute: SCPA Article 13 (ss 1301-1310)
Eligibility requirements:
- Gross personal property is $50,000 or less (exclusive of property set off under EPTL ss 5-3.1(a) for family exemptions)
- Does NOT apply to real property -- however, owning real property does not prevent using this procedure for personal property
- Cannot be used where a potential lawsuit may result in a large recovery
Who may serve as voluntary administrator (SCPA ss 1303):
For intestate estates: surviving adult spouse first, then competent adult children, parents, siblings, in that order. For testate estates: the named executor or alternate executor (must file the will).
How it works:
The qualifying person files a small estate affidavit with the clerk of the Surrogate's Court. A certified death certificate must accompany the filing. The clerk assigns a number, enters the proceeding in court records, and mails notice to each distributee or beneficiary. The clerk then issues a short certificate evidencing the administrator's authority.
Filing fee: $1.00 (SCPA ss 1304(4))
Bond: Not required.
Waiting period: None.
DIY form available: https://nycourts.gov/courthelp/diy/smallestate.shtml
Timeline: Often completed in days to weeks.
Path 2: Full Probate (Testate -- With a Will)
When the estate includes real property or personal property exceeding $50,000, full probate is required.
Governing statute: SCPA Article 14 (ss 1401-1421)
Step 1: File the will with the Surrogate's Court. Any person having custody of a will must file it. The court can compel production under SCPA ss 1401.
Step 2: File the probate petition. Who may petition (SCPA ss 1402): any person designated in the will as legatee, devisee, fiduciary, or guardian; a creditor; any interested person; or the Public Administrator. Required documents: petition for probate, original will, certified death certificate, and oath/designation of clerk for service.
Step 3: Pay the filing fee. Fees are uniform statewide under SCPA ss 2402(7):
| Value of Estate | Fee |
|---|---|
| Less than $10,000 | $45 |
| $10,000 - $19,999 | $75 |
| $20,000 - $49,999 | $215 |
| $50,000 - $99,999 | $280 |
| $100,000 - $249,999 | $420 |
| $250,000 - $499,999 | $625 |
| $500,000 and over | $1,250 |
Step 4: Serve citations. All distributees must be served with a citation -- a court notice that gives the Surrogate's Court jurisdiction. Distributees may sign a waiver and consent or appear in court to object.
Step 5: Prove the will. At least two attesting witnesses must be produced before the court (or provide affidavits). The court must be satisfied the will was properly executed under EPTL ss 3-2.1: signed at the end by the testator, in the presence of at least two witnesses, who sign within a 30-day period.
Step 6: Court issues Letters Testamentary. This grants the executor legal authority to act on behalf of the estate.
Step 7: Administer the estate. The executor inventories assets, pays debts, files tax returns, and distributes to beneficiaries.
Creditor claims period: 7 months from the date letters were first issued (SCPA ss 1802).
Timeline: 7 to 15 months for uncontested estates. Contested or complex estates can take 12 to 24 months or longer.
Path 3: Administration (Intestate -- No Will)
When there is no will, the Surrogate's Court appoints an administrator under SCPA Article 10.
Priority order for appointment (SCPA ss 1001):
- Surviving spouse
- Children
- Grandchildren
- Either parent
- Brothers or sisters
- Other distributees
The administrator must post a bond (unless all distributees waive it). The administrator has the same duties as an executor but distributes assets according to EPTL ss 4-1.1 (intestate succession) rather than a will.
Filing Deadlines
| Action | Deadline | Statute |
|---|---|---|
| File will with Surrogate's Court | No statutory deadline, but promptly | SCPA ss 1401 |
| Creditor claims | 7 months from date letters issued | SCPA ss 1802 |
| NY estate tax return (Form ET-706) | 9 months after death | N.Y. Tax Law ss 971 |
| Federal estate tax return (Form 706) | 9 months after death | IRC ss 6075 |
| Final federal income tax return | April 15 of following year | IRC |
| Final NY state income tax return | April 15 of following year | N.Y. Tax Law |
Who Can Serve as Executor or Administrator
Eligibility (SCPA ss 707): Any competent adult (18+) or authorized corporate fiduciary.
Disqualifications (SCPA ss 707(1)):
- Infants (under 18)
- Incompetent persons
- Non-domiciliary non-citizens, unless serving with at least one co-fiduciary who is a New York State resident
- Persons who lack qualifications due to substance abuse, dishonesty, or who are otherwise unfit
At the court's discretion (SCPA ss 707(2)):
- Persons unable to read and write English
- Felony convicts whose crime may be adverse to estate welfare
Executor Commissions
New York sets statutory commission rates (SCPA ss 2307), computed separately for receiving and paying out:
| Estate Value Tier | Commission Rate |
|---|---|
| First $100,000 | 5% |
| Next $200,000 | 4% |
| Next $700,000 | 3% |
| Next $4,000,000 | 2.5% |
| Over $5,000,000 | 2% |
Intestate Succession -- Who Inherits Without a Will
Under EPTL ss 4-1.1:
| Surviving Family | Distribution |
|---|---|
| Spouse, no children | Spouse receives the entire estate |
| Spouse + children | Spouse receives the first $50,000 + 1/2 of the residuary; children split the rest |
| Children, no spouse | Children receive the entire estate by representation |
| No spouse, no children | Surviving parent(s) receive the estate |
| No spouse, no children, no parents | Siblings receive the estate |
Spousal right of election (EPTL ss 5-1.1-A): The surviving spouse may elect to take the greater of $50,000 or one-third of the net estate, regardless of the will. Filing deadline: 6 months from issuance of letters or 2 years from death, whichever is earlier.
Equitable Distribution and Probate
New York is an equitable distribution state (N.Y. Domestic Relations Law ss 236(B)), not a community property state. Each spouse owns their own separate property and their share of marital property. There is no automatic 50/50 split. For probate purposes, only assets titled in the deceased's name go through the court.
Frequently Asked Questions
Does every New York estate have to go through probate?
No. Only assets titled solely in the deceased's name at death with no beneficiary designation require probate. Joint accounts, POD accounts, Totten trusts, TOD deeds, and assets in trust all transfer outside probate.
What is the small estate threshold in New York?
$50,000 in gross personal property, excluding family exemptions (SCPA ss 1301). The small estate procedure does not cover real property.
How long does probate take in New York?
Small estates: days to weeks. Full uncontested probate: 7 to 15 months. Contested estates: 12 to 24 months or longer. NYC counties tend to have longer timelines.
Is there a deadline to file a will for probate in New York?
New York does not have a strict statutory deadline like Texas's 4-year rule. However, the will should be filed promptly. The court can compel production of a will under SCPA ss 1401 and impose attorneys' fees for withholding without good cause.
What to Do Next
If you are handling a New York estate for the first time, start with the complete guide to what to do when someone dies in New York for the full sequence of tasks. For details on the executor's responsibilities, see the executor duties guide.
Kaira organizes every step for your state — deadlines, forms, and next actions — so nothing gets missed. See how it works.
This guide was researched using New York statutes current as of April 2026. Laws change. For contested estates or complex situations, consult a New York-licensed probate attorney.
Sources: N.Y. SCPA (Surrogate's Court Procedure Act); N.Y. EPTL (Estates, Powers & Trusts Law); N.Y. RPL ss 424 (TOD Deeds); nycourts.gov; tax.ny.gov