A few months after her father’s passing, a client from Brooklyn called me. She had just located his original will, tucked away in a safe deposit box she hadn’t known existed. Her first question wasn’t about assets or beneficiaries—it was a question of panic: “Am I too late to file this with the court?”
In the chaos and grief following a death, administrative duties can feel overwhelming and timelines unclear. Many people believe a strict deadline governs the probate process. In New York, however, the law is more nuanced. While there is no absolute statutory deadline to file a will for probate, this flexibility is not an invitation to delay. An executor’s inaction can create significant legal and financial problems for the estate and its intended heirs.
Why Waiting is a Strategic Error
The primary role of an executor is stewardship—to gather the decedent’s assets, pay their legitimate debts, and distribute what remains according to the will. This fiduciary duty begins at death, and delaying the first step of that process—probate—can put the entire legacy at risk.
Without the authority granted by the Surrogate’s Court through Letters Testamentary, an executor is powerless. Bank accounts remain frozen. Investment portfolios cannot be managed, leaving them exposed to market volatility. Real estate—perhaps a family home in Manhattan—is left in limbo, with no one legally authorized to pay the mortgage, taxes, or insurance, which can lead to foreclosure or a lapse in coverage. Beneficiaries who may be depending on their inheritance are left waiting.
Delay also invites challenges. The longer a will goes un-probated, the greater the chance that essential witnesses may move or pass away, or that documents related to the decedent’s assets will be lost. An extended delay gives disgruntled family members more time to formulate a will contest, making the process more contentious and costly than it needed to be.
The Court’s View on Unreasonable Delay
While the law doesn’t specify a number of days or months, the courts do not look favorably on undue delay. If an executor waits years to submit a will for probate, the Surrogate’s Court will demand a formal affidavit explaining the reasons for the delay. The court needs to be satisfied that the delay was not intended to conceal the will or defraud creditors or beneficiaries.
This is where the legal concept of “laches” can come into play. Laches is a doctrine that can bar a party from asserting a right because they waited an unreasonable amount of time to do so, to the prejudice of another party. If heirs have been harmed or circumstances have drastically changed because of the executor’s inaction, a court could potentially refuse to admit the will to probate.
Under New York’s Surrogate’s Court Procedure Act (SCPA) § 1402, any person named in the will as a beneficiary or fiduciary has the right to petition the court to start probate. If the named executor fails to act, an interested party can step in to compel the production of the will and get the process started. This is not an ideal way to begin an estate administration.
A Prudent and Deliberate Path Forward
For most estates, the prudent course of action is to begin the probate process within a few weeks or months of the decedent’s death. This doesn’t mean the administration will be finished quickly—probate in New York can take nine months or longer—but it means the process has been properly initiated.
The first steps for a nominated executor are straightforward and intentional:
- Secure the original will. A copy is not sufficient for the court.
- Obtain multiple original death certificates. Financial institutions and government agencies will require them.
- Gather preliminary information. Create a basic list of the decedent’s known assets and debts. This does not need to be exhaustive at the outset, but it provides a starting point.
- Consult with an estate administration attorney. An experienced attorney can prepare the probate petition and guide you through the requirements of the Surrogate’s Court.
Taking these steps promptly establishes the executor’s commitment to their fiduciary duty. It protects the assets, reassures beneficiaries, and honors the final wishes of the person who entrusted you with this critical responsibility.
If you have been named an executor in a will and are uncertain about how to proceed, the first step is to organize the decedent’s foundational documents—the original will, death certificate, and a list of known assets. With those items in hand, we can schedule a consultation to assess the estate and outline a clear, deliberate path for its administration.
