New York Probate Process: Surrogate's Court, Letters Testamentary and the Alternatives

By Rozsa Gyene, California estate planning attorney, State Bar of California #208356. Published October 1, 2026. Last reviewed October 1, 2026.

This guide follows a will through the Surrogate's Court from filing to discharge, then describes what happens when there is no will and the shorter routes. Each rule is cited to the section of the Surrogate's Court Procedure Act (SCPA) or the Estates, Powers and Trusts Law (EPTL) it comes from, as read on the New York State Senate's consolidated laws site, and to the court system's own CourtHelp pages. It describes New York law in general terms and is not advice about any one estate.

Where the case is filed

The Surrogate's Court of any county has jurisdiction over the estate of a person who was domiciled in New York at death, and the proper venue is the county of the decedent's domicile at the time of death; a surrogate transfers a proceeding to the Surrogate's Court of the proper county on the court's own motion or on a party's motion (SCPA 205). The court system explains domicile as the county the person considered their primary home, the place they intended to return to if they had more than one residence, and says a nursing home is not a domicile: when the person lived in a nursing home before death, the estate is filed in the county where they lived before entering it, even if they no longer owned or rented that home (CourtHelp, Decedent's Domicile).

Step 1: the probate petition

A petition for probate may be presented by anyone named in the will as legatee, devisee, fiduciary or guardian, by a creditor or any person interested, or in some cases by the Public Administrator or county treasurer (SCPA 1402). The petition must state the citizenship of the petitioner and the testator, describe the will offered and any other will of the same testator on file, and list the names and post office addresses of everyone who must be cited and of all legatees, devisees and fiduciaries named in the will (SCPA 1402). The court system describes the filing: the executor files the original will and a certified death certificate with the probate petition and supporting documents in the Surrogate's Court of the county where the decedent had their primary residence, and in counties on the courts' electronic filing list the papers may be filed over the internet (CourtHelp, Probate). Do not remove the staples from the will when copying it; if they were removed, the court requires a signed and notarized affidavit explaining why, where the will has been kept since it was executed, and that no substitutions or changes were made (CourtHelp, Last Will and Testament).

Step 2: the citation

Process, which the court calls a citation, must issue to the distributees of the testator (the family members who would inherit if there were no will), to the person named as executor if not the petitioner, to anyone named as beneficiary, executor, trustee or guardian in another will of the same testator on file whose interests are adversely affected, and to the others SCPA 1403 lists. The citation gives the Surrogate's Court jurisdiction over the people cited; a distributee can sign a waiver and consent to the executor's appointment or come to court to disagree, and beneficiaries under the will must be notified of the proceeding (CourtHelp, Probate). Any person whose interest in the estate would be adversely affected by admitting the will may file objections, on or before the return day of the citation or, if an examination of the witnesses is requested under SCPA 1404, within 10 days after the examinations are completed (SCPA 1410). Filing objections costs $150 (SCPA 2402).

Step 3: proving the will

Before admitting a will to probate the court must inquire particularly into all the facts and be satisfied with the genuineness of the will and the validity of its execution (SCPA 1408). Unless the article provides otherwise, at least two of the attesting witnesses must be produced and examined if they are in the state, competent and able to testify (SCPA 1404). In practice most wills are proved by the self-proving affidavit instead: an attesting witness's affidavit stating facts that, if uncontradicted, establish the genuineness of the will, the validity of its execution and the testator's competence is accepted by the court as though taken before the court, unless a party entitled to process objects or the court for any other reason requires the witnesses to be produced (SCPA 1406). The will signing guide covers the execution rules in EPTL 3-2.1 that the court is checking.

Step 4: letters testamentary

After a will has been admitted to probate, any person entitled to letters under it who is eligible and who appears and qualifies is entitled to letters testamentary (SCPA 1414). Letters are the court's document showing the executor's authority; a certificate of letters showing the appointment is in full force costs $6 (SCPA 2402). When a petition has been filed and process has issued, an executor named in the will may ask for preliminary letters testamentary so that the estate can be handled while probate is pending (SCPA 1412). The court may require a fiduciary to be bonded before appointment; the bond is issued by a surety company and reimburses the estate if the fiduciary does not take care of it (CourtHelp, Fiduciary of an Estate).

Step 5: the executor's duties

Executors, administrators and voluntary administrators are fiduciaries with a legal duty to act faithfully toward the estate and not put their own interests ahead of it. The court system summarizes the work in three responsibilities: collect, inventory and appraise all the assets of the estate; pay the bills, taxes, estate expenses and creditors; and transfer the property according to the will or, if there is no will, according to the law (CourtHelp, Fiduciary of an Estate). The reasonable funeral expenses, subject to the expenses of administration, are preferred to all debts and are paid first out of the money the fiduciary receives; debts are then paid in the order SCPA 1811 sets, starting with debts entitled to a preference under federal or New York law, then property taxes assessed before death, then judgments and decrees against the decedent, then all other notes, bills and accounts, with no preference among debts of the same class (SCPA 1811).

Step 6: creditor claims and the 7 month period

A claim against the estate, other than administration expenses and claims of the United States or New York State, must be in writing, state the facts it is based on and its amount, and the fiduciary may require the claimant's affidavit that the amount is justly due, that all payments have been credited and that the claimant holds no security except as described (SCPA 1803). The claim is presented by delivering a copy to the fiduciary personally or by certified mail, return receipt requested (SCPA 1803). If a claim is not presented within 7 months from the date letters issued, the fiduciary is not chargeable for assets paid in good faith on lawful claims, legacies or distributions before the claim was presented; the 7 months begin on the date letters were first issued to any fiduciary, including a temporary administrator or a preliminary executor, and are not restarted by a later issue of letters (SCPA 1802).

Step 7: the accounting and discharge

A fiduciary may present an account to the court and petition to have it judicially settled once the time for presenting claims fixed by a published notice has expired or 7 months have expired since letters were issued (SCPA 2208). Many estates close without a judicial accounting: the fiduciary may file a petition showing that all taxes have been paid or none were due, that the time for creditors to present claims has expired, that all known debts and administration expenses have been paid, and that the fiduciary has fully accounted in writing to everyone who would have to be served, together with acknowledged instruments from those persons approving the account and releasing the fiduciary; the court may then make a decree releasing and discharging the fiduciary and the sureties on any bond (SCPA 2203). Instruments settling an account in whole or in part, signed by the fiduciary and the beneficiaries, may be recorded or filed in the court (SCPA 2202). The statutes set the deadlines above, not an overall length for an estate, so none is estimated here.

Court fees

On filing a petition for probate the fee is computed on the gross estate passing by will as stated in the petition; if the estate is later shown to be larger an additional fee for the difference is payable, and if smaller the difference is refunded (SCPA 2402). The schedule, which also applies to a petition for administration and to an accounting, is:

The probate fee includes all charges except, if probate is contested, the fees for filing objections ($150), a demand for a jury trial ($150) or a note of issue ($45). Other items in SCPA 2402 include $6 for each certificate of letters, $6 per page for a certified copy of a will or paper, and $45 to deposit a will for safekeeping under SCPA 2507.

If there is no will: administration

When the decedent left no will, the proceeding is called administration and the court issues letters of administration to a qualified distributee (CourtHelp, Administration). Letters of administration must be granted to the distributees who are eligible and qualify in this order: the surviving spouse, the children, the grandchildren, either parent, the brothers or sisters, then any other distributees, with preference to the person entitled to the largest share (SCPA 1001). The petition is filed with a certified death certificate and a copy of the paid funeral bill in the Surrogate's Court of the county where the decedent had their primary residence, the distributees are cited, and the fee is based on the dollar value of the estate (CourtHelp, Administration). The court system notes that when the only asset is real property an administration proceeding may not be necessary, because real property is granted to the distributees at the time of death (CourtHelp, Administration). Who those distributees are, and what the spouse takes, is in the spouse's rights guide.

The alternative for small estates: voluntary administration

A small estate is the estate of a domiciliary or non-domiciliary who dies leaving personal property with a gross value of $50,000 or less, exclusive of the property set off to the family under EPTL 5-3.1(a) (SCPA 1301). Article 13 does not apply to any interest in real property, but owning real property does not prevent using it for the personal property (SCPA 1302). The court system calls this proceeding a small estate or voluntary administration, says it can be used whether or not there was a will, and notes that a home owned in the decedent's name alone takes the estate out of the small estate category (CourtHelp, When Someone Dies). The voluntary administration guide walks through the affidavit, who may file it and the $1 fee.

Property that is not probated at all

Probate reaches property that passes by will or intestacy. Property in a lifetime trust, which under EPTL 7-1.17 must be in writing and either acknowledged like a deed or signed before two witnesses, is handled by the trustee under the trust's terms. Real property covered by a recorded transfer on death deed passes to the designated beneficiary at death, and the deed is nontestamentary (Real Property Law 424). Where a transferor is a joint owner with a right of survivorship, which Real Property Law 424 defines to include a joint tenant and a tenant by the entirety, the surviving joint owner takes. Each of these is explained in the transfer on death deed guide. Property left outside the trust still goes through the steps above, which is why a New York trust package includes a pour-over will and funding instructions.

Estate tax

New York has its own estate tax. Tax Law 952(c)(2)(B) sets the basic exclusion amount for deaths in 2019 and later at $5,000,000 multiplied by one plus a cost of living adjustment, rounded to the nearest $10,000, and 952(c)(1) allows no credit to an estate whose New York taxable estate exceeds 105 percent of the basic exclusion amount. The Department of Taxation and Finance publishes the resulting figure: $7,350,000 for dates of death from January 1, 2026 through December 31, 2026, and the estate of a New York resident must file a New York estate tax return if the federal gross estate plus includible gifts exceeds that amount (tax.ny.gov). The figure comes from the department's page, not from the statute.