This FAQ answers the questions New Yorkers most often ask about estate planning and probate statewide — grounded in the EPTL (substantive law) and SCPA (procedure). The recurring theme: New York is county-based, so where your estate is handled depends on your county of domicile (SCPA 205-206), not where your property sits. Each answer below is self-contained and citation-ready. For deeper detail, follow the links to our pillar pages.
Process and procedure
Where do I file probate in New York? In the Surrogate’s Court of the county where the decedent was domiciled at death (SCPA 205-206) — not where they owned property. New York has 62 separate county Surrogate’s Courts and no centralized statewide court. See our Surrogate’s Court guide.
How long does probate take in New York? A simple, uncontested estate typically takes 7–12 months. Contested estates, estate-tax filings, or kinship questions extend it, and high-volume downstate courts (New York, Kings, Queens) run slower than smaller upstate counties.
Do all assets go through probate in New York? No. Jointly owned property, beneficiary-designation accounts (IRAs, life insurance, POD accounts), and trust assets pass outside probate. Only solely owned probate assets require a Surrogate’s Court proceeding.
What is a small-estate proceeding in New York? If the decedent’s personal property is $50,000 or less, the estate can use voluntary administration under SCPA Article 13 — a simplified, lower-cost alternative to full probate.
Documents and legal requirements
What makes a will valid in New York? Under EPTL 3-2.1, a will must be in writing, signed at the end by the testator, and witnessed by two people who sign after the testator declares it to be their will. See our wills guide.
What happens if I die without a will in New York? You die intestate, and EPTL 4-1.1 decides who inherits — spouse and children first, in fixed shares. The court appoints an administrator under SCPA 1001 rather than honoring your choice.
Do I need a trust if I have a will in New York? A will still goes through probate; a funded revocable trust avoids it and stays private. Many New Yorkers use both. See our trusts guide.
What incapacity documents do I need in New York? A durable power of attorney (GOL 5-1501, 2021 form), a health care proxy (Public Health Law Article 29-C), and a living will. Without them, your family may face an Article 81 guardianship. See incapacity planning.
Cost and fees
How much are probate filing fees in New York? Filing fees are graduated by estate value under SCPA 2402 — modest for small estates, higher for large ones. Confirm the current schedule with the specific county court.
How much is an executor paid in New York? Commissions follow the SCPA 2307 sliding scale — 5% of the first $100,000 received and paid out, then 4%, 3%, 2.5%, and 2% on higher tiers. See executor duties.
Does New York have an estate tax? Yes — NY Tax Law Article 26. Worse, it has a “cliff”: once your estate exceeds the exemption by more than 5%, the entire estate is taxed, not just the excess. See estate taxes. (Verify the current-year exemption.)
Does New York have an inheritance or gift tax? No standalone inheritance or gift tax. But gifts made within three years of death are added back to the taxable estate.
Local and county-specific
Is there one probate court for all of New York? No. There are 62 county Surrogate’s Courts, one per county, and venue follows the decedent’s domicile (SCPA 205-206).
Can I choose which county handles my estate? No. Venue is fixed by domicile — you cannot file in a more convenient county.
Does New York allow transfer-on-death deeds? No. New York does not recognize TOD deeds for real property, so solely owned real estate passes through the estate unless held in a trust.
How do co-ops pass at death in New York? A co-op is shares plus a proprietary lease (personal property), so the executor works with the co-op board’s transfer process rather than recording a deed. Holding co-op shares in a trust (EPTL 7-1.12) can avoid probate.
When you need a lawyer
When do I need a lawyer for a New York estate? Simple small estates can sometimes be handled with help-center assistance, but any contested matter, estate-tax filing, real property, co-op transfer, or larger estate effectively requires counsel — the SCPA petition, citation, and accounting rules are technical, and fiduciaries face personal liability.
For a personalized answer to your situation, book a 30-minute consultation with attorney Russel Morgan of Morgan Legal Group.
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