Probate and Estate Administration in New York

When a New York resident dies, the Surrogate's Court of the decedent's county takes jurisdiction over the estate. The procedural path depends on whether there is a will and on the value of the probate assets. Probate proper, governed by SCPA Articles 14 and 15, is the process of admitting a will and issuing Letters Testamentary to the executor named in that will. Administration, governed by SCPA Article 10, appoints an administrator when the decedent died without a will and distributes the estate under the intestacy table of EPTL § 4-1.1.

Small-estate proceedings under SCPA Article 13 — sometimes called voluntary administration — are available when the personal property of the estate is worth $50,000 or less, exclusive of real estate. The procedure uses a simplified affidavit form, requires no formal accounting, and is typically completed in two to four weeks. It is the right tool for modest bank accounts, a single car, and personal effects, but it does not transfer real property or large brokerage holdings.

The threshold figures matter. The $50,000 cap on small-estate proceedings is set by statute and adjusts periodically. Real property is excluded from the small-estate cap entirely — any estate containing real estate owned solely by the decedent must proceed through full probate or administration. Joint property with right of survivorship, property held by tenancy by the entirety, and assets in funded revocable trusts all pass outside the probate estate and do not count toward the threshold.

A complete probate petition under SCPA § 1402 requires the verified petition itself, the original will, an original certified death certificate, a citation to be served on all distributees who are not named as executor, the proposed oath and designation of the executor, and any required affidavits of attesting witnesses (unless the will is self-proving under SCPA § 1406). The filing fee is set by SCPA § 2402 and scales with the size of the estate — from $45 for estates under $10,000 to $1,250 for estates over $500,000.

Citation must be served personally or by certified mail with return receipt on every adult distributee, on the parents of any minor distributee, and on the public administrator if any distributee is unknown. The return date — usually six to eight weeks after issuance — gives the distributees an opportunity to appear and either consent to probate or seek time to investigate and file objections under SCPA § 1410.

Letters Testamentary are typically issued four to eight weeks after a complete filing when no objections appear. Banks, brokerages, and title insurers will recognize the Letters immediately, and the executor's authority to act for the estate dates from the moment of issuance. Where a contest develops, Preliminary Letters Testamentary under SCPA § 1412 can be requested to authorize the proposed executor to pay debts, file tax returns, and preserve assets while the contest is litigated.

Intestate administration begins with a petition under SCPA § 1001 by a distributee with priority — the surviving spouse first, then children, then more distant relatives in the order set by EPTL § 4-1.1. The administrator-to-be must post a bond unless the bond is waived by all adult distributees or unless the will (if any) dispenses with bond. Bond is typically secured through a corporate surety; the premium is paid from estate funds.

Distribution under EPTL § 4-1.1 follows a strict statutory table. A spouse who survives with no descendants takes the entire estate. A spouse who survives with descendants takes $50,000 plus one-half of the residue, with the descendants taking the other half per stirpes. If there is no spouse, the descendants take everything per stirpes; failing them, the decedent's parents; then siblings and their issue; then more distant relatives in a defined order before the estate escheats to the State of New York under EPTL § 4-1.5.

Administration is, in practice, somewhat more constrained than probate. The court supervises the administrator more closely, the bond requirement adds cost and friction, and there is no testamentary plan to guide difficult discretionary decisions. The case for executing a will — even a simple one — remains compelling for almost every New Yorker, regardless of estate size.

Once Letters issue, the fiduciary's first job is to marshal the assets — identify every account, real-property interest, business holding, life insurance policy, and tangible personal effect; secure each one; and value each one as of the date of death. The inventory is filed with the Surrogate within six months under Uniform Rule 207.20, with a copy served on every interested party who requests it. Failure to file the inventory is a frequent ground for surcharge objections at the accounting stage.

Creditors are notified by publication under SCPA § 1801, which begins the seven-month creditor claim period. Claims must be presented in writing; the fiduciary either accepts and pays valid claims or rejects them with formal notice, in which case the claimant has limited time to commence suit. Medicaid liens on the estate of a deceased recipient over age 55 must be reviewed and resolved before final distribution — the New York State Department of Health regularly files such claims.

Tax filings include the decedent's final federal Form 1040 and New York State IT-201, the fiduciary income tax return on Form 1041 and IT-205 for any income earned by the estate during administration, the federal estate tax return on Form 706 (required when the gross estate exceeds the federal exemption of $15,000,000 per person for 2026), and the New York estate tax return on ET-706 (required when the gross estate exceeds the New York exemption of approximately $7.35 million). The New York 'cliff' provision causes estates above 105% of the exemption to lose the exemption entirely — sophisticated planning often targets that gap.

The estate closes through an accounting. Most New York estates close on an informal accounting — the executor circulates a schedule of receipts, disbursements, distributions, and proposed commissions, secures signed releases and discharges from each beneficiary, and distributes the residue. Informal closing is fast, private, and avoids further court fees. SCPA § 2208 and § 2209 govern the form.

If a beneficiary refuses to sign a release, or if the executor wants the protection of a court order against future claims, the estate closes on a judicial accounting under SCPA § 2210. A formal petition is filed, citation issues to all interested parties, the accounting is submitted to the court for examination, and any party with standing may file objections. The court enters a decree of judicial settlement that discharges the fiduciary on the assets accounted for.

Executor commissions are set by SCPA § 2307 on a sliding statutory scale: 5% on the first $100,000 of the estate passing through the executor's hands, 4% on the next $200,000, 3% on the next $700,000, 2.5% on the next $4 million, and 2% on amounts above $5 million. Co-executors split the commission unless the estate exceeds $300,000, in which case each may receive a full commission. The commission is taxable income to the executor.